Recent statistics and reports from the southern border show a sharp increase in the arrival of non-U.S. nationals (called “aliens” under governing law) who lack visas or other valid entry documents. (This Sidebar generally refers to such aliens encountered at the cusp of entry into the United States as “undocumented migrants” to distinguish them from those encountered within the interior of the country.) The trend includes a notable uptick in the arrival of unaccompanied alien children (UACs). Department of Homeland Security (DHS) officials have opined that the current surge in undocumented migration could exceed the spike that occurred in 2019. As a result, questions have emerged about how the Biden Administration intends to address the surge and, in particular, how it plans to process the migrants’ claims for humanitarian protection from persecution or torture.
The humanitarian protections available to undocumented migrants at the border under U.S. immigration law include asylum (a discretionary protection from identity-based persecution abroad), withholding of removal (a mandatory protection from such persecution), and withholding or deferral of removal under the Convention Against Torture (a mandatory protection from government-sponsored torture abroad).
Asylum is the most robust of these protections and the only one that offers a dedicated pathway to lawful permanent residence and citizenship. It also requires the lowest standard of proof but, unlike the other two, may be denied for discretionary reasons even to aliens who qualify for it. Despite their differences, however, all of these forms of humanitarian protection have similar implications for the regulation of undocumented migration to the border, as explained further below. (For brevity and per common usage, this Sidebar refers to the legal mechanisms for evaluating claims for any of these humanitarian protections as “asylum processing” or “asylum procedure.”)
For now, the Biden Administration has mostly retained a pandemic-related policy implemented by the Trump Administration that, on public health grounds, permits DHS to expel undocumented migrants at the border without any asylum processing. The Administration is currently reassessing that policy and has exempted UACs from it. How the Administration would approach asylum processing at the border without the pandemic-related policy remains unclear.
“Asylum Processing at the Border: Legal Basics,” CRS Legal Sidebar LSB10582, March 19, 2021 (8-page PDF
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