What are the new requirements for asylum seeker applications under the Biden administration?
Executive summary
The Biden administration implemented a series of policies since 2023 that significantly tighten who may apply for asylum at the U.S.-Mexico border — including presumptive ineligibility for people who transited other countries, requirements to use the CBP One app or other lawful pathways, a higher screening standard for credible fear, and temporary suspensions tied to encounter levels (e.g., thresholds and longer wait periods) [1] [2] [3] [4]. Those measures have prompted litigation, injunctions, and criticism from human-rights groups and legal advocates who say the rules effectively deny many people a fair chance to seek protection [1] [3] [5] [4].
1. What the new rules actually require: appointments, third‑country transit limits, and presumptions
The administration’s package has three core practical effects: it conditions access to asylum at the southern border on using lawful, pre‑arranged entry processes such as limited appointments through the CBP One app; it presumes ineligibility for asylum for people who traveled through another country en route to the U.S. (unless they meet narrow exceptions, e.g., authorized travel or unsuccessful third‑country asylum claims); and it creates temporary suspensions of asylum processing tied to border “encounters” thresholds and extends the time those thresholds must remain low before processing resumes [1] [2] [6] [4].
2. The credible‑fear screening change: a higher bar
The administration raised the standard used at initial credible‑fear screenings from a low “significant possibility” threshold to a tougher “reasonable probability” benchmark — described by advocates as moving from a fraction of 10% to roughly a greater‑than‑51% likelihood standard. That change narrows who advances to full asylum proceedings and was highlighted as a central substantive shift in the interim final rule and subsequent guidance [3].
3. Operational mechanisms: suspension windows, encounter metrics, and app‑based metering
Policy tools include a Presidential Proclamation and a DHS‑DOJ interim final rule that authorize suspending asylum processing when border encounters exceed specified levels and then require those averages to fall below the threshold for an extended period (the regulation extended a prior 7‑day requirement to 28 days) before lifting suspensions. The administration also relies on appointment‑only processing at ports of entry (CBP One) and other operational steps to limit unscheduled asylum interviews [2] [4] [7].
4. Legal status and litigation: contested, stayed, and remanded measures
Courts and legal practitioners have repeatedly challenged these measures. Some rules were enjoined, appealed, or rescinded; for example, parts of the June 2024 Proclamation and IFR faced court rulings finding conflict with statutory asylum rights (Section 1158), and the CLP/related rules have been subject to stays and remands. Litigation remains ongoing and affects how and to whom the rules are applied, including applicability windows tied to May 2023–May 2025 entries [6] [8] [9].
5. Critics’ case: rights curtailed and humanitarian concerns
Human‑rights groups and immigrant‑rights organizations argue the combined effect is to “rob many asylum seekers of a fair chance” and to repackage Trump‑era restrictions under new legal framing. They emphasize that limiting access to ports of entry and requiring transit‑country applications contradict long‑standing principles of asylum and non‑refoulement and will lead to harm for people fleeing persecution [5] [3] [4].
6. Administration’s rationale: deterrence and border management
DHS and DOJ framed the measures as lawful tools to “strengthen border security,” deter irregular migration, and preserve the ability to deliver timely consequences when encounters surge. Officials say higher screening standards and conditional access are meant to incentivize use of lawful, safe, and orderly pathways and to speed removals for those who do not qualify for protection [2] [1].
7. Practical implications for asylum‑seekers and counsel
On the ground, the rules mean many individuals who arrive without prior authorization or who transited other countries face presumptions of ineligibility and a tougher initial screening. Where the CLP provisions cover an entry window (May 12, 2023–May 11, 2025), they remain applied in many cases pending court decisions; USCIS guidance reflects continued use of those presumptions for relevant entrants [9] [6].
8. What’s unresolved and where reporting is limited
Available sources document the new eligibility presumptions, higher screening standard, app/appointment requirements, and encounter‑linked suspensions, but current reporting does not enumerate every operational exception, nor does it fully map how individual asylum offices or immigration courts have adjusted procedures in every district. Specifics about appeals outcomes, exact exception application rates, or how enforcement varies by port are not found in current reporting [6] [9] [8].
Conclusion: the Biden administration’s posture on asylum combines legal retooling, operational controls (CBP One appointments and encounter thresholds), and a raised credible‑fear standard that together narrow effective access at the border; the approach is defended as a necessary border‑management strategy by DHS/DOJ and condemned by advocates as a substantial rollback of asylum access — litigation will determine how many of these measures survive [2] [3] [5].