The Biden administration has proposed a new rule that could tighten restrictions for tens of thousands of asylum seekers arriving at the US-Mexico border. Under the policy, border officials would be granted the power to turn away asylum seekers who fail to seek protection in the countries they travelled through or who circumvent established pathways to lawful migration. Those who violate the rule would be barred from re-entering the US for five years.
Described as an “emergency measure”, the proposal anticipates the end of Title 42, a controversial policy implemented in 2020 under former President Donald Trump that has been used to expel asylum seekers in the name of public health. While Biden has sought to distance himself from his predecessor’s border policies, critics denounced Tuesday’s announcement as a continuation of Trump’s approach to immigration and security.
The Biden administration, however, has described the policy as an opportunity to “incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings”. It has also opened up public feedback on the proposal for 30 days. The rule signals one of the broadest attempts from the Biden administration to curtail undocumented movement across the US-Mexico border, which reached record levels in the 2022 fiscal year.
In January, the Biden administration expanded an initiative originally aimed at Venezuelan asylum seekers to include Nicaraguans, Haitians and Cubans as well. That policy requires asylum seekers from those four countries to apply through a “parole process” that requires applicants to undergo extensive vetting and demonstrate they have a sponsor in the US who can support them financially. Up to 30,000 applicants per month would be accepted under the programme, with individuals from those four countries who arrive “irregularly” across the US border otherwise subject to expulsion.
Tuesday’s newly unveiled rule would widen the number of asylum seekers who could be subject to expulsion. Alejandro Mayorkas, the secretary of Homeland Security under the Biden administration, hailed it as a step in favour of public safety and lawfulness. Critics, however, have slammed the plan as leaving “vulnerable people in danger” and unfairly denying “protection to thousands”.
Four Democratic senators likewise denounced the rule in a joint statement on Tuesday, calling it a “transit ban” for asylum seekers “who don’t first apply for asylum in a transit country”. International law, incorporated into the US Refugee Act of 1980, allows asylum seekers to apply for protection upon arriving in the US on the basis that they fear persecution in their home country.
Biden has depicted his new immigration policies as an answer to a post-Title 42 future and sought to end Title 42 by May 2022 after US health authorities declared it was “no longer necessary”. But the policy continued, with groups like the ACLU suing to repeal Title 42 and Republican lawmakers appealing to the courts to maintain it. Last Thursday, however, the Supreme Court announced it would not hear arguments as planned on March 1.
The DHS said its projections indicate the US-Mexico border could see 11,000 to 13,000 illegal crossings a day if Title 42 were lifted, “absent policy changes”. The Biden administration’s new rule seeks to address this issue by providing consequences for those who fail to use established pathways for migration and encouraging them to use legal processes instead. It is hoped that this will help protect public safety and uphold lawfulness while also providing asylum seekers with access to protection.