The Biden administration on Tuesday announced its new plan to restrict which migrants can apply for asylum at the border, likely setting off a flurry of court battles.
The Department of Homeland Security (DHS) rolled out the new rule, which would limit some migrants arriving by land from requesting asylum protections if they have not already requested asylum in another country they passed through on their way to the United States.
The rule is designed to dovetail with the administration’s other major immigration initiative, a system that allows certain asylum seekers with U.S.-based sponsors to apply for immigration parole to directly enter the United States from their home countries or from certain transit countries.
Reps. Jerrold Nadler (D-N.Y.) and Pramila Jayapal (D-Wash.), top Democrats on the Judiciary committee, said in a joint statement they were “disappointed” with the proposal.
“The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them. Last month, we saw the positive impact new legal pathways can have on irregular migration. We hope the Biden administration will reconsider much of this proposed rule,” the two said in a joint statement.
Immigrant rights advocates have scoffed at the Biden administration’s portrayal of the proposed rule as a moderate regulation of asylum rights, instead drawing negative comparisons to the Trump administration’s transit ban.
“This action will bar deserving asylum seekers arriving at the U.S.-Mexico border from claiming asylum if they passed through another country en route to the United States without seeking protection,” said Rep. Lou Correa (D-Calif.), the top Democrat on the House Border Security Subcommittee.
“This rule will give those seeking refuge the presumption of ineligibility to seek safe-haven in the United States—and it is unconscionable, unacceptable, and un-American.”
Homeland Security Secretary Alejandro Mayorkas has dismissed the comparisons to the Trump administration’s transit ban, pointing out that the Biden administration has worked to establish alternate pathways for migrants, unlike its predecessor.
Transit bans, also known as asylum bans or in some cases as safe third country agreements, rely on an interpretation of asylum law that requires asylum seekers to seek protection in the first safe country they set foot in, rather than in the jurisdiction they believe will protect them.
While traveling to El Paso, Texas, aboard Air Force One in January, Mayorkas flat out denied that his plan is a transit ban, calling it “a rebuttable presumption of ineligibility. And there’s a marked difference between the two.”
The rule is designed to stem the flow of migration throughout Central America and would largely limit asylees to seeking protection in neighboring countries.
“To be clear, this was not our first preference or even our second,” a senior administration official told reporters.
Administration officials underscored that the measures – both the augmented parole program and the transit rule – are temporary measures pending congressional action on immigration.
The administration is rolling out the asylum rule as a precaution for the coming end of Title 42, a pandemic-inspired border management policy that severely restricted asylum.
Officials contend the end of pandemic restrictions in March will moot litigation regarding Title 42. Whether or not that’s the case, the administration wants to have the asylum rule in place before that happens.
It’s all but certain that the rule will be challenged in court. The administration’s legal defense of the rule is likely to hinge on the distinctions made by Mayorkas.
The American Civil Liberties Union, which sued over the policy, said they would do so again.
“We successfully sued to block the Trump asylum bans and will sue again if the Biden administration goes through with its plan to enact a ban,” said Lee Gelernt, an attorney with the group.
The Trump-era transit ban was first blocked as a preliminary rule in court in 2020, and though the Ninth Circuit Court of Appeals only ruled on removing an injunction, the court specifically noted that a rule can’t overturn a foreign national’s right to claim asylum on U.S. soil.
The Trump administration later issued a final rule re-imposing its transit ban effective on Jan. 19, 2021, a day before President Biden was sworn into office. That rule was struck down a month later by a federal judge in California, who wrote the transit ban was “invalid because it is inconsistent with existing asylum laws.”
“Our nation’s courts rightly rejected the Trump administration’s attempt to categorically end asylum when he required asylum seekers to seek asylum in transit countries, and the Biden Administration’s attempt to continue this unfair and restrictive policy is disappointing,” said Correa.
The administration is taking a different legal tack from its predecessor in making its case to regulate asylum.
The Trump administration largely sought to ban migrants who had already presented at the border but had been told to wait their turn in Mexico in a process called “metering.”
The Biden administration is attempting to change asylum rules for all migrants who travel to the United States by land.
“The Attorney General has the authority to place conditions on asylum and he in co-authorship with the Secretary of Homeland Security have done so in this rule,” an administration official told reporters.
“There is a rebuttable presumption of ineligibility for those who have not sought asylum in a third country or have not sought to enter through an established lawful pathway and one of those lawful pathways is a scheduled appointment [through] CBP One, where people can arrive at a port of entry, be screened and vetted and processed into the United States where they may then seek asylum,” added the official.
A key distinction between the two administrations’ plans is that the Biden plan only applies to people who enter the United States without prior authorization between ports of entry, or at ports of entry without sufficient documentation to be lawfully admitted into the United States.
In theory, that would allow any foreign national with an asylum claim to walk up to an official border crossing to request an asylum screening.
But both the Trump and Biden administrations laid out their asylum regulations as a deterrent to future migrants – a third rail with immigration advocates.
“What we have seen is when there is a real consequence to, to crossing irregularly between ports, you know, we see a dramatic drop in encounters people avail themselves of illegal pathways and this leaves this this has a really positive impact not only on our resources CBP on the ground, but also on border communities,” said an administration official.
Immigration advocates quickly lambasted the new rule as the recycling of a Trump-era policy.
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration,” Krish O’Mara Vignarajah, president of Lutheran Immigration and Refugee Service, said in a release.
“This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.”
This story was updated at 6:46 p.m.