Biden administration proposes rule to limit asylum-seekers at southern border

(TND) — The Biden administration has proposed a rule that could limit asylum-seekers at the southern border.

The rule is intended to discourage dangerous migrant treks and illegal border crossings.

But some question how effective the rule would be, and the policy proposal is already being criticized by immigrant advocates and some Democrats.

“It is beyond disappointing that the Biden administration is moving forward with an anti-asylum policy that is copied from the cruel transit ban issued by the Trump administration,” reads a statement from Southern Poverty Law Center official Erin Argueta.

The Department of Homeland Security and the Department of Justice say the rule, which will go through a 30-day public comment period, can help limit “irregular migration” and encourage migrants to use new and existing legal pathways for entering the U.S.

The rule would require migrants traveling through another country, in addition to their country of origin, to apply for asylum in that country first. Failure to seek asylum in that third country before showing up at the U.S. border will result in the migrant being found ineligible for asylum here.

Kevin R. Johnson, an expert in immigration law and policy, said this new third-country travel rule tries to limit the number of asylum-seekers by making the process more difficult.

Mexican nationals aren’t going to feel much impact from the proposed rule, because they don’t have to travel through another country, said Johnson, who is a dean and professor of Public Interest Law and Chicana/o Studies at the University of California, Davis.

But anyone hailing from countries in Central or South America, or from the Caribbean, and traveling to the U.S. border by land are likely going through at least one other country, and that’s probably Mexico.

Mexico does have a refugee system, but Johnson said there's some dispute about how asylum-seekers are treated along the southern Mexico border.

Migrants could also be denied for not going through a port of entry.

The rule has an exception for unaccompanied children, and migrants can fight their initial ineligibility determination if they show they or a member of their family with whom they’re traveling face a medical emergency or extreme and imminent threats to their safety, such as rape, kidnapping, torture or murder.

Migrants who are denied entry will be subject to a five-year bar on reentry and possible prosecution if they try to get back into the U.S. without authorization, the DHS and DOJ said.

The rule is designed to provide temporary relief on the border after Title 42 is lifted in May. Title 42 is a public health order under which migrants are turned away with the declared purpose of stopping the spread of COVID-19. Enforcement of Title 42 began under President Donald Trump and has continued under President Joe Biden.

Since Title 42 has been in place, government figures show a surge in border encounters. There were around 450,000 encounters in 2020 before rising to 1.7 million in 2021 and 2.3 million in 2022.

But Ernesto Castaneda, director of the Immigration Lab at American University, said those figures are misleading and exaggerated, as they count individual migrants multiple times as they repeatedly try for entry.

“While the encounter numbers have been widely reported across media outlets, regardless of their perceived political orientation, encounters are different from distinct individuals,” he said last week.

Officials pointed to new parole processes, announced early last month, for people from Cuba, Haiti, and Nicaragua, along with an expansion of the process for Venezuelans, as evidence that these legal and orderly processes for entry can work.

January saw the lowest level of encounters between the ports of entry since February 2021, according to the DHS and DOJ.

Encounters for those folks between ports of entry at the southwest border declined 97% last month as those new parole processes were implemented.

At the same time, the DHS and DOJ said thousands of Cubans, Nicaraguans and Haitians using the lawful process were thoroughly screened and vetted, and they received travel authorization.

"We are a nation of immigrants, and we are a nation of laws," Secretary of Homeland Security Alejandro N. Mayorkas said in a news release. "... As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry."

Johnson questioned just how effective this rule would be in slowing the flow of asylum-seekers.

“The problem is that we have people fleeing horrible conditions in a number of countries where they're fearing for their lives, and they're literally willing to risk their lives crossing deserts and mountains to get to this country and apply for relief,” Johnson said.

He also expects this rule will be challenged in the courts.

Some people even from the president’s own party are expressing their displeasure with the rule.

“We are deeply disappointed that the Administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation,” reads a joint statement from Democratic senators Bob Menendez, Cory Booker, Ben Ray Luján and Alex Padilla.

The rule is consistent with the Trump administration's efforts to curb what it called asylum abuse, Johnson said.

But the Biden administration said the Trump-era transit ban and entry ban included categorical bars on eligibility for asylum.

“On the positive side, there were no harsh verbal attacks on immigrants a la President Trump,” Johnson noted.

Johnson said the proposed rule is designed to quell political concerns about the border situation.

But it’s not clear if this move will make either side happy.

“President Biden is taking what he views as a middle ground,” Johnson said. “I don't think he's going to convince people like the speaker of the house that we are moving in the right direction toward enforcement. I don't think he's going to make people like Sen. Alex Padilla happy with this approach.”

Johnson is also skeptical that this move will grease the gears for immigration reform in Congress.

“Some political leaders benefit by having the immigration border crisis card to play in the primaries,” Johnson said.

Economic pressures could drive lawmakers to the bargaining table over immigration reform, as farmers and industry struggle to find enough workers, Johnson said.