Biden immigration plan could force asylum officers to break law, union warns

Migrants bundle up against the cold in front of a fire.
Migrants camping along the U.S.-Mexico border in December try to stay warm. A jump in the number of migrants seeking asylum in the United States has challenged local, state and federal authorities.
(John Moore / Getty Images)

President Biden’s plan to limit some migrants’ access to asylum could force federal asylum officers to break U.S. law, the union that represents asylum officers argued Monday in a formal filing opposing the proposal.

Enforcing Biden’s policy would violate asylum officers’ oath to carry out the immigration laws set out by Congress and “could make them complicit in violations of U.S. and international law,” attorneys for the American Federation of Government Employees Council 119 wrote in a comment submitted to the Department of Homeland Security.

The same union regularly protested the Trump administration’s efforts to restrict asylum at the southern U.S. border, including by joining lawsuits that sought to block his policies. Its decision to oppose Biden’s asylum proposal is one indication of the plan’s similarities to Trump-era efforts.

“At their core, the measures that the Proposed Rule seeks to implement are inconsistent with the asylum law enacted by Congress, the treaties the United States has ratified, and our country’s moral fabric and longstanding tradition of providing safe haven to the persecuted,” the union argued. “Rather, it is draconian and represents the elevation of a single policy goal — reducing the number of migrants crossing the southwest border — over human life and our country’s commitment to refugees.”


Biden’s plan, unveiled in February, is his latest attempt to deter migrants from entering the U.S. without authorization. If enacted, it would make immigrants who cross into the U.S. without permission and fail to apply for protections on the way to the southern border ineligible for asylum.

The proposal has to go through a regulatory process, including allowing the public to send comments on it, before it can be finalized and take effect. Some administration officials hope that the new measure will lessen the impact of the end of Title 42, a Trump-era policy set to expire in May that allows border agents to quickly turn back migrants.

The union also opposes Biden’s plan because it would erode commitments to providing shelter to those fleeing from persecution, is inconsistent with asylum law, and would undermine the asylum screening process, according to the comment.

Asylum officers are “duty bound to protect vulnerable asylum seekers from persecution or torture,” the union wrote. Under the policy, “they would face a conflict between the directives of their departmental leaders to follow the new rules and adherence to our nation’s legal and moral commitment to not return refugees to territories where they will face persecution. Asylum officers should not be forced to honor rules that are fundamentally contrary to the moral fabric of our nation and to our international treaty and statutory obligations,” the comment read.

Immigrant advocates have criticized Biden’s plan, arguing that it mirrors former President Trump’s move to deny asylum to people who crossed into the U.S. without authorization and did not seek protections in another country on their journey. A federal appeals court blocked that policy in 2020.

Biden administration officials, however, have said the new policy is not comparable to Trump’s because it would not categorically deny asylum to migrants who cross through other countries on the way to the border. Under Biden’s plan, migrants who cross through third countries before entering the U.S. would still be able to seek asylum at an official port of entry.


“This administration just won’t allow mass chaos and disorder at the border because of Congress’ failure to act,” an administration official said on a call with reporters in February.

Under the Biden proposal, immigrants who cross the southern border without authorization after traveling through a third country and have not been denied asylum in a country on their way to the U.S. would be forced to overcome a presumption that they are ineligible for asylum. Immigrants unable to overcome that hurdle would be liable to deportation unless they either meet one of several exceptions included in the policy or clear a higher bar for protection in the United States.

Michael Knowles, a longtime asylum officer and spokesperson for the union, said it was “imperative” that the union file the comment because its members would be forced to carry out the policy.

“Our members feel that this rule, if it goes forward, would make them complicit in an illegal act, in a human rights violation by our country,” he said.