The Biden administration on Tuesday issued its most restrictive border control measure to date, announcing plans for a temporary rule that will penalize asylum seekers who cross the border illegally or do not apply for protection in other nations they pass through on their way to the United States.
The policy announcement, made jointly by the Homeland Security Department and the Justice Department, is the latest administration move aimed at shoring up a potential vulnerability for Biden if he runs for reelection next year. After taking office, Biden reversed and eliminated many of the Trump administration’s immigration restrictions, but the president’s pledges to create a more orderly system have been undercut by frequent scenes of border chaos and record numbers of illegal crossings.
Also looming is the expiration of the pandemic public health emergency, set by the White House for May 11. That will end the border restrictions known as Title 42 that have allowed authorities to rapidly expel more than 2 million migrants, including asylum seekers, since March 2020.
Administration officials said the new proposed rule would give them an enforcement tool to address a potential migrant surge when Title 42 ends. And by making it easier for asylum seekers to make an appointment at a U.S. border crossing, they say, they are opening more avenues for vulnerable migrants, not turning them away.
“As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry,” DHS Secretary Alejandro Mayorkas said in a statement.
Officials said the proposal will be subject to a 30-day public comment period. Under the terms of the rule, asylum seekers would be able to overcome the “rebuttable presumption of asylum ineligibility” by showing they were denied safe refuge in Mexico or another nation through which they traveled before reaching U.S. territory. The rule would be applied when a U.S. asylum officer makes an initial evaluation of the asylum seeker’s claims during what is known as a “credible fear” interview.
Tuesday’s announcement carries significant political risks for the president, and the proposal was denounced by migrant advocates who are a core part of the Democratic Party base. Biden is also unlikely to win praise from Republicans who view immigration and the border as a key wedge issue for the 2024 race.
In federal court, the administration is already trying to fend off multiple lawsuits filed by Republican state officials trying to keep Trump-era measures in place. The new asylum restrictions could leave Biden battling litigants on both ends of the political spectrum.
Lee Gelernt, the American Civil Liberties Union attorney who argued successful challenges to the Trump administration’s attempts to disqualify asylum seekers, said his organization would seek to block what he described as a similar condition.
“The proposed asylum ban has the legal flaws of the Trump bans,” Gelernt said in a statement. “We successfully sued to stop those bans and will do so again if the Biden administration enacts these bans and follows the lead of the Trump administration.”
Administration officials insist that the comparison to the Trump administration’s treatment of migrants is unfair. They say that they are asking asylum seekers to schedule appointments at official U.S. border crossings instead of hiring smugglers and crossing illegally, and they are expanding other opportunities for migrants to enter the United States lawfully.
Criminal organizations including Mexican drug cartels generate lucrative profits from smuggling fees and payments for safe passage through their territory. Migrants who hire them arrive to the United States in debt, and those who don’t succeed often risk losing the homes they put up as collateral. Biden officials say they want to break this cycle by directing vulnerable migrants to their online appointment system with the chance to enter the United States lawfully.
Advocacy groups who work with migrants also reacted bitterly to Tuesday’s announcement and said they see little difference between Biden’s proposal and the approach taken by his predecessor.
Krish O’Mara Vignarajah, the president of the Lutheran Immigration and Refugee Service, said the proposed rule resurrects “one of the most harmful and illegal anti-asylum policies of the Trump administration.”
“It defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum,” she said. “Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.”
The current U.S. asylum system was set up in the aftermath of World War II and the Holocaust, with safeguards established to make sure the government would not deport migrants back to nations where they could be killed or persecuted on the basis of race, religion, political beliefs or membership in particular social groups.
In recent years, authorities have seen soaring numbers of migrants crossing the southern border illegally and surrendering to U.S. authorities. By stating a fear of harm if sent home, they effectively halt the deportation process. The government is too overwhelmed to quickly process their claims, and many are released into the United States with court appointments.
Many of those migrants do not complete the asylum application process after their release. With more than 1.5 million cases pending in U.S. immigration courts, it can take years before persecution claims are adjudicated. And DHS statistics show those who drop out of the process to remain in the United States illegally face a low risk of deportation, creating what critics see as a worsening loophole that undermines effective enforcement.
Rep. Mark Green (R-Tenn.), the chairman of the House Homeland Security Committee, dismissed Biden’s move as “too little, too late.”
“Three years into the humanitarian and security crisis created by this administration, Americans are sick of half-baked, politically-driven attempts by Secretary Mayorkas to save face for his boss ahead of the 2024 Presidential election,” Green said in a statement. “With record numbers of migrants crossing the border and more Americans than ever dying from drug overdoses, more must be done to quell the crisis than this administration is willing to acknowledge.”
Leading Democrats weren’t much more supportive. Rep. Jerrold Nadler (N.Y.), the top Democrat on the House Judiciary Committee, and Rep. Pramila Jayapal (D-Wash.), one of the party’s most influential figures on immigration issues, released a joint statement expressing “deep disappointment” with Biden’s proposed rule.
“The ability to seek asylum is a bedrock principle protected by federal law and should never be violated,” they said. “We should not be restricting legal pathways to enter the United States, we should be expanding them.”
Administration officials are anticipating additional criticism from Democratic lawmakers but say the move is an unpalatable but necessary measure resulting from Congress’s inability to pass a comprehensive overhaul and address glaring problems with the U.S. asylum system.
“This administration will not allow mass chaos and disorder at the border because of Congress’ failure to act,” said an administration official who spoke on the condition of anonymity to describe the proposal.
“Even though these temporary measures are being taken out of necessity, they continue to hold true to this administration’s Day One principles of expanding legal pathways, limiting unlawful migration, and increasing border security,” the official said.
On Jan. 5, the administration announced a deal with Mexico allowing authorities to send back across the border up to 30,000 migrants per month who have come from Cuba, Haiti, Nicaragua and Venezuela if they cross illegally. At the same time, the administration is using an executive authority known as “parole” to allow each month 30,000 people from the four nations to enter the United States legally if they have U.S. sponsors and apply via a mobile app.
In the weeks that followed the Jan. 5 announcement, illegal crossings by migrants from Cuba, Haiti, Nicaragua and Venezuela dropped 97 percent, according to government data. Officials said they think the new asylum policy could have a similar deterrent effect.
The administration has discussed an arrangement with Mexico that would allow authorities to return some Cubans, Haitians, Nicaraguans and Venezuelans back across the border as deportees once the Title 42 public health restrictions lift. Biden told Telemundo this month he did not believe that the deportations to Mexico would be necessary.