An asylum seeker (right) waits outside the San Ysidro Port of Entry in March 2022 in Tijuana, Mexico. (Photo by Mario Tama/Getty Images)
WASHINGTON — The Biden administration is rolling out a proposed rule that for two years would bar migrants from applying for asylum at the Southern border if they have not first asked for protection in a country they traveled through.
The administration is seeking to limit asylum requests at the U.S.-Mexico border as a pandemic-era immigration measure is set to end this summer. But the policy change brought immediate criticism from immigration advocates and Democrats in Congress.
The proposal, which will officially publish in the Federal Register on Thursday, is reminiscent of Trump-era immigration policies, critics said.
In its proposal, the Department of Homeland Security said a high number of migrants at the Southern border “would put an enormous strain on already strained resources; risk overcrowding in already crowded U.S. Border Patrol (‘USBP’) stations and border ports of entry in ways that pose significant health and safety concerns; and create a situation in which large numbers of migrants — only a small proportion of whom are likely to be granted asylum — are subject to extreme exploitation by the networks that support their movements north.”
For a migrant to claim asylum in the U.S., they would first have to schedule an appointment at a U.S. port of entry and apply for a legal pathway in the country they travelled through.
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The rule would apply to single adults and families seeking asylum, but there would be an exception for children and teens who are unaccompanied.
There are also exceptions for asylum seekers who are facing an imminent threat to their lives or have a medical emergency.
However, those asylum seekers who “do not establish a reasonable fear of persecution or torture in the country of removal will be promptly removed,” according to a DHS fact sheet.
And those asylum seekers who are ordered removed would be subjected to a five-year ban from requesting asylum and would be ineligible to apply for other parole programs available to those nationals from Cuba, Haiti, Nicaragua and Venezuela.
“We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners,” U.S. Department of Homeland Security Secretary Alejandro N. Mayorkas said in a statement.
Immigration advocates and Democrats pushed back on the announcement, and asked the Biden administration to reconsider the proposed rule.
“We are deeply disappointed in the Biden administration’s proposal to limit access to asylum,” House Judiciary Committee ranking member Jerrold Nadler of New York and Immigration Integrity, Security, and Enforcement Subcommittee ranking member Pramila Jayapal of Washington said in a joint statement.
“We should not be restricting legal pathways to enter the United States, we should be expanding them,” they said.
Nadler and Jayapal argued that asylum law is protected by federal law, and that this new proposal violates that protection.
The chair of the U.S. Senate Committee on Foreign Relations, Democrat Bob Menendez of New Jersey, called the proposed rule a transit ban.
Menendez, along with Democratic Sens. Cory Booker of New Jersey, Ben Ray Luján of New Mexico and Alex Padilla of California, issued a joint statement, that said the Biden administration’s proposed rule “only perpetuates the harmful myth that asylum seekers are a threat to this nation.”
“We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them,” they said. “We urge President Biden and Secretary Mayorkas to reverse course and pave a better path forward that protects the right to asylum while addressing the real operational challenges at our Southern Border.”
Immigration advocates made similar remarks.
“It is deeply disappointing to see the Biden administration recycle immigration policies from the Trump administration that inflict harm on those seeking safety,” said Efrén C. Olivares, deputy legal director for immigrant justice at the Southern Poverty Law Center.
The Trump-era policy barred migrants from claiming asylum in the U.S. if they lived or traveled through other countries before coming to the U.S. The policy was struck down by federal courts.
Public comment on the new Biden administration proposed rule will be open for 30 days after it is published in the Federal Register. The administration said the proposal is in “anticipation of a potential surge of migration at the southwest border,” once Title 42 ends on May 11.
Title 42 is a public health policy that allows the U.S. to expel any noncitizen during a health crisis, such as the coronavirus pandemic.
Since the Trump administration enacted the policy in March 2020, more than 2 million asylum seekers have been expelled under Title 42. The Biden administration is moving to end the public health emergency on May 11, which will also end the policy.
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