In late February, the Biden Administration announced new asylum policies that seek to disqualify migrants from asylee status if they entered the United States between official ports of entry after failing to seek refugee status in other countries that they may have crossed along the way. This proposed policy change can be detrimental to many asylum seekers from the southern border who have no other choice but to cross a third country to enter the United States.

The proposed policy is inconsistent with asylum law, which only prohibits eligibility if the applicant “firmly resettled” in a third country. While firm resettlement may require a complex legal analysis, typically it requires that the individual receive legal status in a third country that allows them to remain indefinitely and safely. The new policy, however, creates a “rebuttable presumption of asylum ineligibility” for those arriving at the southern border who have not pursued “protection in a country through which they traveled,” unless “they meet exceptions that will be specified.” Many critics of the policy see comparisons to actions taken by the Trump Administration to deter asylum seekers from receiving their due process under the law.

The Biden Administration’s far-reaching transit rule aims to disqualify individuals who crossed a third country on their way to the United States on the assumption that they could have safely resettled in a third country. In essence, the administration’s third-country transit rule assumes that just because an applicant passes through a third country, they can safely resettle there. This is simply not true. Many of the countries that these individuals are crossing cannot offer them the safety that they would receive in the United States.

Rather than creating unlawful changes to asylum eligibility, a more reasoned approach would be to improve procedures in courts and asylum offices to make sure claims can be processes more efficiently but still fairly.