WOLA: Advocacy for Human Rights in the Americas


14 Nov 2023 | Commentary

U.S. Congress Must Not Gut the Right to Asylum at a Time of Historic Need

The U.S. Congress is currently considering the 2024 federal budget, plus a supplemental budget request for Ukraine, Israel, Gaza, and the U.S.-Mexico border. In exchange for approval—especially for the $106 billion supplemental request—legislators from the Republican Party, which controls the House of Representatives and 49 of 100 Senate seats, are demanding changes to border and migration policy, including a series of measures that would severely curtail the right to seek asylum in the United States.

Calling themselves the “Republican Working Group,” three Republican senators issued a one-page document on November 6 summarizing the border and migration proposals they demand to include in the supplemental budget request. Senate Democratic leaders have rejected these proposals, but two Democratic senators are involved in a bipartisan sub-group seeking to negotiate common ground—if any exists.

The “Republican Working Group” draws its demands from H.R. 2, the “Secure the Border Act of 2023,” which passed the House of Representatives on May 11. As it would adopt measures extreme enough to block access to asylum for nearly all who seek it in the United States, H.R. 2 had passed without a single Democratic legislator’s vote.

These proposals come at a time when the Western Hemisphere is experiencing record levels of migration as authoritarian regimes, crushing poverty, violence, persecution, discrimination, and climate change force more and more individuals and families to leave their homelands. UNHCR estimates that 20.6 million people are currently on the move throughout the Americas. While the United States is receiving only a portion of that flow, the arrival of over 200,000 people per month, a majority of them vulnerable asylum seekers— mostly children and parents with children—underscores the necessity of a dependable U.S. asylum system.

This system draws on a crucial promise, enshrined in the 1951 Refugee Convention and the United States’ 1980 Refugee Act: the United States will not remove non-citizens on U.S. soil who fear return to their country due to likely loss of life or freedom for reasons of race, religion, nationality, political belief, or membership in a particular social group.

The provisions of H.R. 2, including those featured in the Republican senators’ November 6 proposal, would weaken that historic promise beyond recognition. They create a series of obstacles and hurdles that would make it nearly impossible for more than a handful of people to find refuge in the United States.

“If these proposals are implemented, more people who have no choice but to flee for their lives will be sent back to once again face persecution and harm. Some will die,” reads a November 9 letter to President Joe Biden from about 200 non-governmental organizations, including WOLA. “The harm will fall disproportionately on Black, Brown, and Indigenous refugees who are already marginalized globally.”

Here are nine of the most alarming proposals, among many in the radical legislation that passed the House in May:

1. Ban asylum access for people who did not cross the border at ports of entry.

This provision, which appears in the senators’ November demands, would limit asylum eligibility only to individuals who arrived in the United States at a port of entry, or official border crossing. If they crossed elsewhere—the Rio Grande, a desert, over the border wall—people who just underwent a treacherous journey would be deported without a fair hearing, even if they might qualify for protection.

Many people who are seeking to turn themselves in to Border Patrol to make an asylum claim do not know that there is a “right” way to cross the border, or migrant smugglers often mislead them.

Even if they did know, that path is often unavailable. U.S. Customs and Border Protection (CBP) restricts the number of asylum seekers who can step over the borderline and access U.S. soil at ports of entry each day. The result has been waiting lists—this year, mediated by a smartphone app, CBP One—that force people to wait for months in dangerous northern Mexico border cities, where many are preyed upon by organized crime and live in squalid conditions because of insufficient support services and the inability to legally work.

Existing U.S. law states that asylum seekers have a right to due process regardless of how they cross the border. Whether they crossed at a port of entry or turned themselves in to U.S. authorities in the desert has no bearing on the grave danger they might face if deported. It should have no bearing on their right to petition for protection.

2. Ban the use of the CBPOne app to schedule appointments for asylum or other migration relief—currently the only mechanism for scheduling appointments.

This provision, which passed the House in H.R. 2 but did not get an explicit mention in the Republican senators’ one-page proposal, would stop CBP from using its smartphone app to schedule asylum appointments at ports of entry. For all its flaws, the app provides at least a mechanism for 1,450 daily appointments at the official border crossings. Without a system for appointments, CBP officers at ports of entry could return to blocking all but a trickle of asylum seekers at the borderline, a legally dubious practice called “metering.”

3. Ban asylum access for people who pass through other countries without seeking asylum there.

This provision, which appears in the Republican senators’ proposal, would codify and expand the Biden Administration’s May 2023 asylum “ transit ban.” It would deny asylum to any migrant who passed through a third country en route to the U.S.-Mexico border (that is, citizens of every country except Mexico) unless every country through which they passed along the way rejected their asylum applications. (The Biden asylum rule requires that migrants who cross between ports of entry show they received rejections in at least one country.) Asylum seekers, then, would even have to seek asylum in the most impoverished, dangerous, and poorly governed countries through which they passed.

4. Heighten eligibility standards to pass a credible fear interview.

Shortly after they turn themselves in at the border, many asylum seekers must undergo an initial screening interview with an asylum officer from U.S. Citizenship and Immigration Services (USCIS). Currently, the asylum officer must conclude that there is a significant possibility that the applicant could establish eligibility for asylum. Under both H.R. 2 and the Republican senators’ proposal, the asylum officer would hold the applicant to a stricter standard: that they could more likely than not establish eligibility for asylum.

Credible fear interviews, which often take place during rushed “expedited removal” procedures, already raise due process concerns, as asylum seekers often must carry them out over the phone, a few days or weeks after being detained in CBP’s jail-like facilities, with limited access to evidence to back up their cases, and rarely with meaningful access to counsel.

Currently, about two-thirds of asylum seekers pass their credible fear interviews. Congressional Republicans apparently believe this number is too high. WOLA is concerned by reports that the Biden administration and some key Democratic legislators have indicated that they are open to negotiating a shift to this tougher standard.

“Proposals to raise the standard of proof that migrants making protection claims must meet to access full legal processes will bring the United States further out of compliance with our binding international legal obligations under the 1951 Refugee Convention and 1967 Protocol, as well as the Convention Against Torture,” warned a November 13 letter from the union representing asylum officers. “Doing so would also defeat the purpose of conducting screenings by applying the same standards applicable in full merits hearings without the attendant due process protections.”

5. Revive “Safe Third Country” agreements.

H.R. 2 would require the Biden administration to renegotiate “Safe Third Country Agreements” with countries throughout the Americas. (It is unclear whether this is part of the Republican senators’ proposal.)

The Trump administration had convinced Guatemala, Honduras, and El Salvador to sign agreements in which those countries would accept asylum seekers of other nationalities, flown there from the U.S.-Mexico border, to seek asylum in these countries’ systems. These three nations are hardly viewed as countries of refuge: with high poverty rates, high violent crime rates, and governments that, in some cases, persecute the free press, human rights activists, and anti-corruption advocates, they are second, third, and eighth among countries most often sending migrants to the United States since 2020. The only Trump-era “safe third country” agreement to operate was in Guatemala: the Trump DHS sent 945 migrants from other countries to seek asylum in Guatemala City; none were granted protection.

6. Revive the “Remain in Mexico” policy.

The Republican senators’ proposal adopts another element of H.R. 2 involving a third country: the notorious “Remain in Mexico” policy. Among their conditions for supplemental funds for Ukraine and other priorities, congressional Republicans would require the Biden administration to revive a Trump-era program that forced 71,068 asylum seekers from third countries to await their U.S. immigration court dates inside Mexico—mainly in Mexican border cities with some of the country’s highest violent crime rates—in 2019 and 2020. At least 1,500 asylum seekers suffered violent attacks after being made to remain in Mexico, according to information compiled by Human Rights First.

7. Expand the detention of migrants, including asylum seekers, and reopen infamous Immigration and Customs Enforcement (ICE) detention facilities.

Asylum seekers from Mexico cannot “Remain in Mexico,” and perhaps a few others might evade this program. H.R. 2, though, would mandate detention for nearly all asylum seekers in the United States, even if they’ve passed credible fear interviews. The indicated requirement is detention for the duration of their asylum adjudication process, meaning some people would be detained for years, considering processing times and appeals. To do this, H.R. 2 would require the reopening of ICE detention centers that the U.S. government shut down since 2021 due to the severity and frequency of human rights concerns.

8. Restart and expand family and child detention.

While the Republican senators’ proposal doesn’t specifically mention an ICE detention mandate, it appears to imply one, as their demands include a revival of detention for asylum-seeking families. The only way to do this would be to change the law to overturn the Flores Settlement Agreement, a court order prohibiting children’s detention for more than 20 days in environments that are not licensed childcare facilities. The United States would become a country that locks up parents and children, at a cost well above $300 per family per day, in contractor-managed detention centers and exposing children to trauma that can have long-lasting impacts on their development and well-being.

9. Restrict temporary humanitarian parole.

The Biden administration has sought to make it unnecessary for some nationalities’ migrants to come to the border and seek asylum, using a 1950s-era presidential authority to grant two years of “humanitarian parole” to citizens of Cuba, Haiti, Nicaragua, and Venezuela who have passports and U.S.-based sponsors. This legal pathway, though limited to 30,000 parolees per month, has successfully helped many migrants avoid the dangerous route to the U.S.-Mexico border.

Both H.R. 2 and the Republican senators’ proposal would sharply curtail the presidential parole authority. The proposal would end the parole program for Cubans, Haitians, Nicaraguans, and Venezuelans. It could also end the Biden administration’s 2022 “Uniting for Ukraine” program for people fleeing the Russian invasion.


If the Senate Republicans’ November 6 proposal were to become law, it would deny asylum to almost all protection-seeking migrants, unless:

    • That migrant sought asylum and received rejections in every country through which they passed en route to the United States.
    • That migrant presented at a land-border port of entry (official border crossing), even though CBP strictly limits asylum seekers’ access to these facilities.
    • The U.S. government could not send that migrant to a third country to seek asylum there.
    • In an initial “credible fear” interview within days of apprehension, that migrant met a higher screening standard.

If an asylum seeker clears those hurdles, the Republican proposal would require them to await their court hearings in ICE detention—even if they are a parent with children—or while “remaining in Mexico.”

This proposal is extraordinarily radical. Congressional Republicans’ demands to attach it to 2024 spending put the Biden administration in a tough position. It is a terrible choice to have to secure funding for Ukraine and other priorities by ending the United States’ historic role as a country of refuge, breaking international commitments dating back to the years after World War II.

H.R. 2 and the Republican senators’ demands would undo the right to asylum in all but name. That is too high a price to demand. In their negotiations on 2024 spending, Democratic legislators and moderate Republicans must stand firm in their support of the right to seek asylum in the United States. Nobody on our soil who fears death or imprisonment upon deportation should ever be denied due process.