Biden's Proposed Asylum Ban Will Deny Refugees Protection


Biden's Proposed Asylum Ban Will Deny Individuals the Meaningful Ability to Seek Protection

The rule may even violate international law as the U.S. will be refusing to provide adequate protections to individuals that may be in serious danger of a persecution in their home country and are entitled to protections under  The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment ("CAT").

The proposed rule that bans individuals from applying for asylum in the U.S. if they passed through Mexico on their way to the U.S. could have a significant impact on asylum seekers' ability to seek protection in the U.S. There are several ways in which this rule could deprive individuals of the meaningful ability to seek protection:

It would limit access to the asylum process: By barring individuals who passed through Mexico from applying for asylum in the U.S., the rule would effectively close the door to the asylum process for many people who are seeking protection. This could prevent individuals from being able to present their claims for protection to U.S. authorities, and could leave them without a legal avenue to seek asylum in the U.S.

It would force individuals to seek protection in Mexico: Under the proposed rule, individuals who passed through Mexico on their way to the U.S. would be required to seek protection in Mexico instead of the U.S. However, Mexico may not have the same resources or legal protections available to asylum seekers that the U.S. does. This could leave individuals without adequate protection and may result in them being returned to the country they fled from.

It could lead to more dangerous journeys: If individuals are unable to seek protection in the U.S., they may be forced to take more dangerous routes or rely on smugglers to make their way to the U.S. border. This could put them at risk of exploitation, trafficking, or other harm.

Overall, the proposed rule could have significant implications for individuals who are seeking protection in the U.S. by limiting their ability to access the asylum process and potentially exposing them to greater harm. 


The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment is an international human rights treaty adopted by the United Nations General Assembly in 1984. The treaty aims to prevent torture and other forms of cruel, inhuman, or degrading treatment or punishment around the world.

Under the Convention, torture is defined as the intentional infliction of severe pain or suffering, whether physical or mental, for purposes such as obtaining information, punishment, or intimidation. The Convention also prohibits other forms of cruel, inhuman, or degrading treatment or punishment, which are defined as acts that cause physical or mental suffering that are below the threshold of torture.

The Convention obligates States parties to take measures to prevent and prohibit torture and other forms of ill-treatment, to investigate allegations of such acts, and to provide remedies and compensation to victims. It also provides for the establishment of a Committee against Torture, which monitors States' implementation of the Convention.

As of 2021, the Convention has been ratified by 171 countries. States parties are required to submit regular reports to the Committee against Torture on their implementation of the Convention, and the Committee issues recommendations and observations to help States parties fulfill their obligations.

Protections for Non-Citizens Under Convention Against Torture

The United States became a signatory to CAT in 1988 and Congress ratified the treaty in 1994. In 1998, as part of the Foreign Affairs Reform and Restructuring Act (“FARRA”), the U.S. officially announced its plan to implement CAT. 2 The former Immigration and Naturalization Service promulgated regulations in 1999, which set out the standards and procedures for protection under the Convention. The regulations can be found at 8
C.F.R. §§ [1]208.16 to [1]208.18.

Protection under Article III of the Convention is an important option for non-citizens who do not meet the requirements for asylum, but can show that they will be tortured if they return to their home country. Relief under the Convention is not discretionary, so for those that meet the eligibility requirements, the immigration judge (IJ) must grant protection.

Relief Conferred by Convention Against Torture

CAT relief does not confer lawful immigration status or a path to permanent residency. Rather, it will only prevent deportation of the applicant to the specific country or countries to which removal has been withheld or deferred.12 So after a CAT grant, if a different country will accept the person, they can be deported to that country.

A person granted CAT protection can qualify for a work permit. A separate work authorization category exists for those granted withholding of removal under CAT.13 Those granted deferral of removal under CAT can apply for a work permit once released from DHS custody, under the same category used by individuals with final removal orders released on an order of supervision.14 While CAT protection allows the foreign national to live.