The U.S. could bar tens of thousands of migrants arriving at the U.S.-Mexico border from applying for asylum under a proposal unveiled Tuesday that would be the most sweeping effort yet by the U.S. president Joe Biden’s administration to prevent unauthorized crossings.
Under the new rules, migrants who do not schedule an appointment at a US border port or use humanitarian programs available to certain nationalities would not be eligible for asylum except in certain cases. They must also first seek and be denied protection in countries they pass through in order to apply for asylum once in the United States.
Reuters first reported details of the move, which was was posted online on Tuesday and will be subject to a 30-day public comment period before being reviewed for final publication.
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Biden, a Democrat who took office in 2021 and is expected to seek re-election in 2024, initially promised to restore access to asylum that was restricted under his Republican predecessor, Donald Trump. But advocates and some other Democrats have criticized him for increasingly embracing Trump-style restrictions as he has struggled to cope with record migrant arrivals.
Biden’s plan to ban some asylum seekers mirrors similar efforts under Trump that were blocked by federal courts and have drawn similar opposition.
The American Civil Liberties Union (ACLU) vowed to fight the Biden rule in court, comparing it to the Trump restriction, which was called a “transit ban” by activists.
“We successfully sued to block Trump’s transit ban and will sue again if the Biden administration goes through with its plan,” said Lee Gelernt, the ACLU attorney who argued the Trump-era lawsuit.
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Families and single adults would be subject to the restrictions while unaccompanied minors would be exempt, according to the rule, issued jointly by the US Department of Homeland Security (DHS) and the US Department of Justice (DOJ). The measure would be temporary and limited to a period of two years, with the possibility of extending it.
Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California College of the Law, San Francisco, said the Biden proposal ignores dangerous conditions and limited asylum capacity in transit countries where migrants are expected to seek protection.
“It’s a terrible example of trying to ignore your domestic and international legal obligations,” she said.
The Biden administration began discussing the ban and other Trump-style measures last year as a way to reduce illegal crossings if the Covid-19 restrictions allowing many migrants to be deported back to Mexico ended. The administration is moving forward with tougher asylum rules as the Covid restrictions, known as Section 42, are likely to drop on May 11 when the Covid-19 public health emergency ends.
“Without a meaningful policy change, border encounters could increase and potentially increase dramatically” after the repeal of Title 42, the text of the proposed rule said, estimating crossings could reach up to 13,000 per day without Covid restrictions, up from a daily average of about 5,000 in January.
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A Biden administration official, who declined to be named, told reporters that the rule “is intended to fill the void that Congress has left by not taking any action” to overhaul immigration laws or increase border security funding.
Mexican authorities did not respond to requests for comment.
Biden expanded Title 42 in January to deport additional nationalities while allowing some people from those countries to apply for legal entry by air via humanitarian parole if they have U.S. sponsors. The parole program, for up to 30,000 Cuban, Haitian, Nicaraguan and Venezuelan migrants per month, would be one of the legal pathways the administration says would allow asylum seekers to circumvent the proposed restrictions.
Separately, migrants seeking asylum at the U.S.-Mexico border can schedule an appointment at a U.S. port of entry using an app called CBP One. But since the CBP One initiative launched in January, migrants say slots have filled up quickly.
(Reporting by Ted Hesson in Washington; Additional reporting by Kristina Cooke in San Francisco, Daina Solomon in Mexico City and Kanishka Singh in Washington; Editing by Mica Rosenberg, Matthew Lewis, Andrea Ricci and Deepa Babington)