On Tuesday, the Biden administration issued a new policy that bans migrants who went through other nations en route to the US-Mexico border from seeking asylum in the United States, marking a change from the decades-old policy.
The new 153-page draft regulation, which may affect tens of thousands of individuals, is the most stringent of a patchwork of measures implemented by the Biden administration to control the US-Mexico border and resembles a policy from the Trump administration.
Biden Administration's New Border Policy
The proposed rule would presume ineligibility for asylum 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, thus reducing reliance on human smuggling networks that exploit migrants for financial gain," according to the regulation's text.
While there are certain exceptions, the rule would mainly apply to migrants who unlawfully cross the US-Mexico border. It does not apply to unaccompanied child migrants, as per CNN.
Administration officials dismissed the connection to the Trump administration on Tuesday, stating that it is not a blanket prohibition on asylum and highlighting measures to enhance access to lawful avenues to the United States, such as the recently announced parole program for select nationalities.
The proposed regulation will be published in the Federal Register for 30 days of public comment. It will likely go into effect in May when a pandemic-era border limitation known as Title 42 expires. Also, the regulation is anticipated to remain for two years.
Like the Trump administration, the Biden administration's stance has been widely criticized by Democratic politicians and immigration activists. Democratic Hispanic senators voiced their persistent opposition to the rule in a private meeting with Homeland Security Secretary Alejandro Mayorkas last week, according to a person familiar with the encounter.
The new regulation, which was announced on Tuesday, is the most rigorous border control policy implemented by President Joe Biden so far. If migrants crossing the southern border did not first seek asylum in a nation they traveled through, such as Mexico, they would be ineligible for refuge in the United States.
No matter how they enter the United States, migrants fearing persecution can request asylum under US immigration law. But, Biden's policy would infer that unlawful border crossers are ineligible for asylum.
Southern Border Policy Opposed by Advocacy Groups
Opponents assert that it is comparable to the "transit ban" suggested by Trump, which was ruled unconstitutional by the courts during his administration. It was the brainchild of Trump's ardently anti-immigrant aide, Stephen Miller.
The Biden administration contends that their program is unique since it permits migrants from Venezuela, Haiti, Nicaragua, and Cuba to apply directly to enter the United States if they have a US-based sponsor.
Nonetheless, the ACLU criticized the policy changes offered by Biden as "mere window dressing." And Keren Zwick, director of litigation at the National Immigrant Justice Center, said that her organization and others would once again collaborate in opposing any such regulation, as they did with the Miller version.
She forecasted that it would not withstand their legal challenge. Biden's proposed policy would go into effect in May and expire two years later. It will likely go into effect before the COVID-19-era Title 42 public health restrictions expire on May 11, as per Daily Mail.
In January, just before his visit to the southern border, Vice President Joe Biden detailed his efforts to reduce illegal border crossings, including implementing Title 42, which expires on May 11. The president stated that the new measures "won't repair our entire immigration system, but they will assist us significantly in better managing a difficult situation."
He highlighted that the United States needs more asylum officers and professionals to decide whether individuals qualify for refuge. Organizations have protested his initiatives, notably the planned transit ban-style regulation. In a letter, about 300 advocacy organizations urged Biden not to apply the policy.
Biden was lauded for his pledge to reestablish humane standards at the border but failed to address the migrant issue. Republicans have severely criticized Trump on this subject. Even several Democrats from border states have urged the government to strengthen its measures.
Transit bans, sometimes known as asylum bans or in certain circumstances as safe third country accords, are based on an interpretation of asylum legislation that compels asylum seekers to seek refuge in the first safe nation they enter, as opposed to the jurisdiction they believe would provide protection.
In January, when traveling on Air Force One to El Paso, Texas, Mayorkas categorically rejected that his plan is a transit ban, describing it as "a rebuttable presumption of ineligibility." And there is a clear distinction between the two."
The measure is intended to curb migration throughout Central America and restrict asylum seekers to neighboring nations. Administration officials emphasized that both the expanded parole program and the transit regulation are temporary measures pending action on immigration by Congress.
The government is implementing the asylum rule to safeguard the upcoming termination of Title 42, a pandemic-inspired border control policy that severely restricted asylum.
Authorities assert that terminating pandemic limitations in March will render the Title 42 lawsuit moot. Regardless of whether this is true, the administration wishes to have the asylum rule in place before this occurs. The ruling will almost certainly be challenged in court. The administration's legal defense of the regulation will likely rely on Mayorkas' distinctions.
The American Civil Liberties Union filed a lawsuit against the policy and said it would do so again. Although the Ninth Circuit Court of Appeals merely decided to lift an injunction, the court clearly said that a regulation could not override a foreign national's right to seek refuge on US soil.
Per The Hill, the Trump administration published a final regulation reinstating the transit prohibition on January 19, 2021, one day before the inauguration of President Joe Biden. A month later, a federal court in California knocked down this order, writing that the transit prohibition was "illegal since it is inconsistent with existing asylum legislation."
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