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Biden administration rolls out new asylum restrictions mirroring Trump-era policy

<i>John Moore/Getty Images</i><br/>Migrants seeking asylum turn themselves in to US Border Patrol agents after wading across the Rio Grande to El Paso
Getty Images
John Moore/Getty Images
Migrants seeking asylum turn themselves in to US Border Patrol agents after wading across the Rio Grande to El Paso

By Priscilla Alvarez, CNN

The Biden administration released a new rule Tuesday that largely bars migrants who traveled through other countries on their way to the US-Mexico border from applying for asylum in the United States, marking a departure from decadeslong 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 and manage the US-Mexico border and is reminiscent of a Trump-era policy.

The proposed rule would presume asylum ineligibility and “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,” according to the text of the regulation.

While there are some exceptions, the rule would generally apply to migrants who unlawfully cross the US-Mexico border. It doesn’t 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 the onus is on Congress to pass reform.

“These temporary measures are being taken out of necessity,” the administration official said.

Administration officials on Tuesday rejected the comparison to the Trump administration, saying that it’s not a categorical ban on asylum and emphasizing efforts to expand access to legal pathways to the US, 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 likely 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.

The Biden policy, like the Trump-era one, has garnered wide condemnation from Democratic lawmakers and immigrant 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 voiced frustration with the administration when the rule was initially announced, describing being blindsided by new border policies and the lack of engagement. On Tuesday, House Judiciary Committee ranking member Jerry Nadler, a New York Democrat, and Immigration Integrity, Security, and Enforcement Subcommittee ranking member Pramila Jayapal, a Washington Democrat, slammed the move.

“We are deeply disappointed in the Biden administration’s proposal to limit access to asylum,” the joint statement read. “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated.”

Mayorkas walked Latino senators through the regulation, according to the source, but it didn’t 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 into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration,” said Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, in a statement. “Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.”

To manage the flow, the administration has leaned on Title 42 to turn away certain migrants encountered at the US-Mexico border. But with the clock ticking on its potential expiration 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 use of a fast-track deportation process known as “expedited removal.” While Mexico has been taking migrants under Title 42 and previously under a Trump-era border policy known as “remain in Mexico,” the plan would appear to mark the first time Mexico would take back non-Mexican deportees at a large scale. The Department of Homeland Security has denied reports of the plan.

The shifting migration patterns has put a strain on federal resources, as border authorities have encountered an increasing number of Cubans, Venezuelans and Nicaraguans. The US is largely barred from deporting migrants from those nationalities back to their home countries because of strained diplomatic relations.

The US 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 legally come to the United States. Thousands of migrants have already applied.

Administration officials have credited the program for leading to a significant drop in border crossings.

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