In Continuation of a ‘Unified Immigration Agenda’: The End of Asylum at the United States Southwest Border

ABSTRACT Through a complementary framework of laws, policies, and practices, the Biden administration has built upon the immigration agendas of previous United States (US) administrations, restricting the right to seek asylum for those arriving at the southwest border almost entirely. Principally, it has expanded certain laws and policies implemented by the Trump administration – some of which it has vigorously defended in court – and implemented new laws and policies, specifically a final rule entitled ‘Circumvention of Lawful Pathways’, which limits asylum but for the most exceptional circumstances. As this article demonstrates, these exceptional circumstances have been interpreted and applied by Customs and Border Protection officers in terms even narrower than the final rule permits. The restriction of asylum has been realized through two specific modifications to US immigration law and, by extension, fundamental precepts of international refugee law: the conflation of asylum seekers and migrants as classes of individuals subject to undifferentiated legal processes, and the qualification of asylum based on the mode of arrival, specifically, arrival by land at the southwest border after having travelled through another Central American State – a condition that applies to all land arrivals by non-Mexican nationals. Through an analysis of quantitative data, and a series of qualitative interviews with legal service providers, shelter providers, independent researchers at US ports of entry, and a former senior US Border Patrol agent, the article demonstrates that the implementation of the Biden administration’s immigration agenda and the practice of Customs and Border Protection officers forms part of a ‘unified immigration agenda’ of multiple sequential US administrations, the purpose of which is to restrict access to asylum, create conditions unconducive to spontaneous arrival at the southwest border, and impose extreme hardships on those who seek to enter the US via the southwest border. The Biden administration has continued to pursue this unified immigration agenda by implementing Circumvention of Lawful Pathways, essentially ending the provision of asylum, even for those who are clearly in need of protection.