The Biden administration proposed a new restriction on asylum seekers that closely resembles a policy from the Trump administration.
The new rule would prevent migrants who do not use already available legal pathways to asylum and do not seek asylum in a third country from applying for asylum in the U.S. Biden Administration officials said the rule was proposed in response to the end of Title 42 immigration restrictions. It also closely resembles a Trump administration policy which similarly banned asylum seekers who did not first seek asylum in another country.
“The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain,” the Department of Homeland Security and Department of Justice wrote in a notice of proposed rulemaking Tuesday. “It would do so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.”
“In the absence of such a measure, which would be implemented on a temporary basis, the number of migrants expected to travel without authorization to the United States is expected to increase significantly, to a level that risks undermining the Departments’ continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances,” the two departments continued.
The DOJ and DHS expressed optimism that the new restriction would lead to a reduction in migrants crossing the southern border; and thereby reducing the power of human smuggling networks and helping to decrease the numbers of migrants in already overcrowded border facilities. This reduction in numbers would ensure that migrant processing “is done in an effective, humane, and efficient manner,” the departments wrote.
After a public comment period, the new restrictions will go into effect on May 11th, the same day that the Biden administration intends to end the COVID-19 national and public health emergencies. Title 42 restrictions, which allow authorities to turn migrants away due to public health concerns, are also scheduled to end then.
The new restrictions closely resemble a similar asylum ban implemented by the Trump administration. Those restrictions, referred to as both “asylum bans” and “transit bans,” were highly controversial and bitterly fought over in the courts from the beginning of former President Trump’s term. The Trump-era bans were blocked by the courts in 2018 and 2020; the final rule was implemented on Trump’s last full day in office, but a judge struck that down as well.
Democrats and immigration advocates decried the new rules because of the similarities to Trump policies. But the Biden administration dismissed those criticisms, and noted that they have provided alternative pathways for migrants to seek asylum. In January, DHS Secretary Alejandro Mayorkas rejected the comparisons, saying that his plan was based on “a rebuttable presumption of ineligibility. And there’s a marked difference between the two,” he said, via The Hill.