by (CNN) The Biden administration released a new rule on Tuesday that largely bars migrants who traveled through other countries on their way to the US-Mexico border from applying for asylum in the US, marking a departure from decades-long protocol.
The new 153-page proposed regulation, which could affect tens of thousands of people, is the most restrictive of a patchwork of policies put in place by the Biden administration to try to manage the US-Mexico border and is reminiscent of a Trump-era policy.
The proposed rule would assume asylum ineligibility and “encourage migrants to use legal, safe, and orderly pathways into the United States, or otherwise seek asylum or other protection in countries through which they travel, thereby reducing reliance on human trafficking networks which exploit migrants for financial gain”, according to the regulation’s text.
Although there are some exceptions, the rule will generally apply to migrants illegally crossing the US-Mexico border. It does not apply to unaccompanied migrant children.
“To be clear, this was not our first preference or even our second,” an administration official told reporters, adding that it is the duty of Congress to pass reforms.
“These temporary measures are being taken out of necessity,” the administration said.
Administration officials on Tuesday rejected the comparison with the Trump administration, saying it is not a categorical ban on asylum and emphasizing efforts to expand access to legal pathways to the United States, including a recently launched parole program for certain nationalities.
The proposed rule will be posted in the Federal Register for a 30-day public comment period and is likely to take effect in May, when a pandemic-era border restriction known as Title 42 is set to expire. The rule is also expected to last for two years.
Biden policies, like the Trump era, have drawn widespread condemnation from Democratic lawmakers and immigration advocates. In a private meeting with Homeland Security Secretary Alejandro Mayorkas last week, Democratic Hispanic senators expressed their ongoing concerns about the rule and opposition to it, according to a source familiar with the meeting.
Members of the Congressional Hispanic Caucus had previously expressed frustration with the administration when the rule was first announced, describing being blindsided by new border policies and a lack of engagement. On Tuesday, ranking member of the House Judiciary Committee Jerry Nadler, a New York Democrat, and ranking member Pramila Jayapal, a Washington Democrat and ranking member of the Subcommittee on Immigration Integrity, Security and Enforcement, backed the move.
“We are deeply disappointed by the Biden administration’s proposal to limit access to asylum,” the joint statement said. “The ability to seek asylum is a fundamental principle protected by federal law and should never be violated.”
Mayorkas walked Latino senators through the regulation, according to the source, but that did not appear to ease concerns. Immigrant advocates also criticized the asylum rule Tuesday, arguing it violates President Joe Biden’s pledge to restore asylum.
“This rule reaches down into the dustbin of history to revive one of the most harmful and illegal anti-asylum policies of the Trump administration,” Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said in a statement. “Requiring persecuted people to first seek protection in countries without functioning asylum systems is itself a ridiculous and life-threatening proposition.”
To manage the flow, the administration has relied on Title 42 to turn away certain migrants encountered at the US-Mexico border. But with the clock ticking on the potential expiration date and amid ongoing litigation, officials are considering other enforcement measures as tens of thousands of migrants continue to move in the Western Hemisphere.
Among the plans being considered by the administration is the use of an expedited deportation process known as “expedited removal.” While Mexico has accepted migrants under Title 42 and previously under a Trump-era border policy known as “remain in Mexico,” the plan appears to mark the first time Mexico would take back non-Mexican deportees on a large scale. The Department of Homeland Security has denied reports of the plan.
The changing migration patterns have put a strain on federal resources, as border officials have faced increasing numbers of Cubans, Venezuelans and Nicaraguans. The United States is largely barred from deporting migrants of these nationalities back to their home countries due to strained diplomatic relations.
The United States has since begun sending migrants from Cuba, Venezuela, and Nicaragua to Mexico under Title 42 and opened a separate program that allows migrants of those nationalities and Haiti to apply to enter the United States legally. Thousands of migrants have already applied.
Administration officials have credited the program with leading to a significant drop in border crossings.
