On Tuesday, a federal judge ruled that the Biden administration’s asylum transit ban was illegal and should be vacated. The ruling isn’t in effect yet – it was delayed for 14 days and may be stayed indefinitely by the 9th Circuit or the Supreme Court. This would leave the regulation in place while the case is appealed. If not, though, the Biden administration will have to stop enforcing the transit ban – which has been in place since mid-May 2023 – and start the regulatory process over again.
Reporters have called the ruling a big blow to the Biden administration, because officials characterized the transit ban as a key element of their policy at the U.S.-Mexico border after Title 42 ended in May. The implication is that the transit ban has worked to reduce unauthorized migration. And indeed, the administration has warned that unauthorized migration will increase if the transit ban is struck down. In a court filing in the case, the administration estimated as many as 13,000 people would start crossing every day.
But the available evidence suggests that it’s not nearly that straightforward – that the transit ban hasn’t had as much of an impact as government officials have claimed. To anticipate what might happen if it is in fact vacated – and what the consequences will be if it’s allowed to remain in effect — it’s important to understand how the transit ban has actually worked.
Is The Transit Ban a Deterrent (and Would That Be a Good Thing?)
When the number of people apprehended by Border Patrol agents between ports of entry dropped from May to June – the first full month after Title 42 ended– the Biden administration took credit for the reduction.
The administration’s argument is that by pairing harsh border measures like the transit ban with an expansion of legal pathways for some immigrants, such as the parole program for Cubans, Haitians, Nicaraguans and Venezuelans (which is allowing 30,000 people in each month with temporary two-year work permits), people are either taking other options rather than crossing the border without authorization or being discouraged entirely. In court, though, the administration has characterized the transit ban as the linchpin of its strategy, and warned that border crossings would rise to pre-Title 42 levels if it were struck down.
For one thing – as Judge Tigar noted in his ruling – the very fact that the Biden administration has expanded legal pathways alongside implementing the transit ban makes it impossible to claim that the transit ban has single-handedly reduced unauthorized migration. For another, though, it’s premature to declare a significant and lasting reduction in unauthorized migration at all. And if it were the case that the transit ban were responsible for deterring thousands of people a day from seeking asylum, that would raise a separate, morally thorny, set of questions.
One month of data isn’t usually enough to determine whether there’s a lasting trend. And there are two reasons to be skeptical that the drop in migration from May to June was a harbinger of a lasting reduction. For one thing, the height of summer usually isn’t the most popular time to migrate to the United States. Several prior years have seen apprehensions rise through spring, then start to drop in June and July.
For another, what we’ve seen over the last decade – as administration after administration has tried to manage migration with a series of asylum crackdowns, rather than building a system capable of handling people with efficiency and dignity – is that each crackdown is followed by a short-term drop in apprehensions, as migrants adopt a “wait and see” approach. But as it becomes clear that at least some people are successfully getting into the U.S. – and as situations in migrants’ home countries, or the countries they’re waiting in, may become harder to bear – border apprehensions start to increase again.
If Judge Tigar’s order goes into effect and the transit ban is vacated, any increase in apprehensions will likely be blamed on the judge. But it’s entirely possible that if the transit ban isn’t vacated, numbers will numbers go up anyway. If you wouldn’t blame the transit ban for causing an increase in migration under those circumstances – and it wouldn’t make any sense to do that — you shouldn’t jump to the conclusion that ending it will cause any increase, either.
If the transit ban were working to deter people from migrating entirely, though, that would raise its own set of problems. Because many of the people coming to the U.S.-Mexico border have viable asylum claims – they will suffer persecution and potentially violence or death if turned away or forced to stay in their home country. It’s impossible to design a policy that deters only the people who will not ultimately be found to qualify for asylum according to a set of legal standards that even American lawyers who aren’t immigration specialists don’t understand, while not deterring anyone who would qualify. Deterrence is a blunt instrument.
In the text of the transit ban regulation, the Department of Homeland Security acknowledged that some people who would otherwise be granted asylum would instead be refused entry into the U.S., but that “generally” they’d be able to seek asylum at a U.S. port of entry, via one of the 1,450 daily appointments available on the CBP One app; qualify for other legal pathways, such as the CHNV parole program; or receive an exemption from the rule.
As Judge Tigar acknowledged, the record suggests that isn’t the case, and that people are being left vulnerable (especially on the Mexican side of the U.S.-Mexico border). But the point is that everyone agrees that some people are being left out by the transit ban.
That’s concerning for anyone who cares about the U.S. upholding its humanitarian commitments, because it accepts that some people who need protection will be denied, and the only question is how many.
In practice, though, administrations of both parties for the last decade haven’t been worried about deterring people in need of protection. They’ve acted as if most of the people who will be deterred aren’t worthy asylum claimants, and as if that makes deterrence a legitimate goal. The question, then, is what that ratio really is. This brings us to the other way the transit ban was supposedly “working” – and raises even bigger questions about what it has actually done.
Was The Transit Ban Successfully Filtering Out “Weak” Asylum Claims Early?
In practice, the transit ban isn’t a straightforward prohibition on asylum for anyone who entered the U.S. between ports of entry without applying for asylum (and being denied) in another country first. Instead, it creates a “presumption of ineligibility” for those people, which they then must overcome by going through a convoluted and restrictive process.
The first and arguably most important step is the screening interview, known as a credible fear interview, conducted by an asylum officer. Under the transit ban, asylum seekers have to meet a higher evidentiary standard to establish their claims of persecution or torture in order to be allowed to stay in the U.S. (even though this wouldn’t necessarily be enough to exempt them from ultimately being denied asylum under the ban).
Credible fear interviews have long been seen by skeptics as too lenient – people often point to the difference between the historical approval rate for screenings, around 90%, and the much lower percentage of people who ultimately win their cases. Because the transit ban tightened the standard for credible fear interviews, reducing the number of people who would pass that first hurdle, it would be expected to reduce that gap.
That’s important to the way its supporters wanted it to work: the point of the transit ban wasn’t supposed to be to allow people to stay in the U.S. for years and then bar them from asylum, but to deport them from the U.S. within days of their apprehension because they failed to pass the first test. (Indeed, the Biden administration’s use of phone-booth asylum interviews and its pilot of a program to screen families – and potentially deport them – within days of their arrival in their destination city, are intended to maximize swift “consequence delivery.”)
In the court case, the federal government touted a big drop in the screening-interview grant rate, claiming the transit ban had cut approvals from 83% to 48%. But that was based only on the first two weeks of the ban. By the first half of July, 60% of people were passing their screening interviews. (This could indicate that, while government lawyers saw the lower initial pass rate as a good thing, the officials closest to the process needed to make some adjustments to ensure that people weren’t being sent back to harm.)
In the early months of 2023, credible fear interview pass rates were around 70%. A drop from 70 to 60% isn’t that significant.
And that’s among the people who are being screened to begin with. Plenty of asylum seekers are still being released from government custody without having a credible-fear interview first. In June, ICE released 6,718 people on parole into the U.S., of whom fewer than 600 had been paroled after passing a credible-fear interview. Because the federal government spent so long emphasizing harshness and deterrence over building its capacity to process people – a trend it’s only beginning to work to reverse by doubling asylum screenings at ports of entry — there aren’t enough people at the border to enforce new policies across the board.
That doesn’t mean the transit ban won’t have an impact. At the end of the process, when asylum-seekers face an immigration judge, they would again be subject to the ban. Instead of maximizing quick deportations, the transit ban will maximize unpleasant surprises for people who have been allowed to stay in the U.S. for months or years.
It may be impossible to say whether the transit ban worked to deter people from crossing into the U.S., but it will, ultimately, stop people who’ve been living here from staying here. The benefits (as the federal government sees the policy) are hazy, while the costs are real.