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Making Sense of the Ever-Changing Asylum Rules at the U.S.-Mexico Border

By Joseph Fawbush, Esq. | Last updated on

The Biden Administration enacted a rule in May limiting the number of people able to seek refuge in the U.S. between the U.S.-Mexico border. Migrants who travel through another country before arriving in Mexico will continue to face long waits, overcrowding, and uncertainty. That rule, known as Circumvention of Lawful Pathways, makes all asylum seekers who travel to Mexico ineligible for asylum, except for unaccompanied children and noncitizens who have been denied asylum or other forms of protection by another country. It is a modification of the Trump Administration's "Remain in Mexico" policy that was enacted in 2018.

Now, a federal judge has ruled this policy violates federal law. The Biden Administration has already appealed the decision to the 9th Circuit. This means that U.S. policy on asylum seekers will remain in place for now, but the fight over how to treat migrants seeking asylum at the border is likely to continue for some time. Here's a quick overview of how things currently stand.

A Brief Timeline of Recent U.S. Border Policy On Asylum Seekers

An asylum seeker is someone who presents themselves at the border requesting entry into the country as a refugee. If the asylum seeker is fleeing their home country due to a well-founded fear of danger or persecution, the U.S. will give the migrant status as a refugee and allow them to remain in the U.S. legally. However, the specific policies regarding asylum-seekers is complicated and ever-changing. There is a huge backlog of cases for people requesting asylum, and the average wait time to obtain an asylum hearing is around 4 years.

The Trump Administration implemented the "Remain in Mexico" policy in 2018. This policy set up Migrant Protection Protocols (MPP) that required certain asylum seekers to wait in Mexico for their U.S. court hearings. The idea was to prevent migrants from entering the U.S. while their asylum cases were processed. Then, during COVID-19, the Trump Administration used Title 42 to impose restrictions on entry into the United States. This let U.S. authorities quickly expel migrants and asylum seekers without standard immigration proceedings.

These controversial rules faced several legal challenges. Ultimately, the U.S. Supreme Court allowed the Remain in Mexico policy to continue and never ruled on Title 42 in anticipation of the Biden Administration reversing these policies. The Biden Administration revoked MPP protocols in June, 2021, and allowed Title 42 to expire in May.

The Biden Administration's New Rule

But the end of Title 42 did not mean asylum seekers faced an easier path to entry into the U.S. Shortly after Title 42 expired, the Biden Administration issued a new rule regarding asylum seekers. This rule is similar to the Remain in Mexico policy, but provides exceptions for unaccompanied children, noncitizens who have been denied asylum, and in certain other circumstances.

This rule has also been controversial. The ACLU sued on behalf of migrants, claiming the Circumvention of Lawful Pathways violates federal law. On Tuesday, July 25, U.S. District Court Judge Jon Tigar ruled in favor of the ACLU, finding that the rule went beyond what Congress authorized. However, Judge Tigar issued a stay of this ruling so that the Biden Administration could appeal, which it did hours after the ruling. This means that the rule is still in effect and will remain so until the case is resolved — perhaps even until the Supreme Court has the chance to weigh in.

Current Rules for Asylum Seekers

What does this mean for the tens of thousands of migrants waiting at border towns in Mexico? Ultimately, little has changed for now. Under the Circumvention of Lawful Pathways rule, asylum seekers will have to remain in Mexico until their case is processed, which could take years. The only exceptions are if you are an unaccompanied minor, have been denied asylum in another country, or meet one of the other extremely limited exceptions.

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