By Gary Bai
The Biden administration on Tuesday unveiled a new rule that constitutes its most extensive attempt to date at restricting illegal immigrants who cross the border to seek asylum in the United States.
Migrants who enter the United States illegally, or who fail to seek protection in countries they pass through en route to the United States, would automatically be considered ineligible for asylum, unless they qualify for certain exceptions, according to the new rule published on Feb. 21 on the Department of Homeland Security (DHS) website.
The policy is much more restrictive than current laws, which allow people claiming persecution in their home country to apply for asylum in the United States, regardless of how they entered.
“These steps are being taken in response to the unprecedented western hemispheric migration challenges—the greatest displacement of people since World War II—and the absence of congressional action to update a very broken, outdated immigration system,” the DHS said in a statement.
The DHS called the new rule an “emergency measure” intended to prevent a further surge in illegal immigration when Title 42 is expected to expire on May 11. Title 42 is a Trump-era COVID-19 response policy that allowed expedited expulsion of illegal immigrants.
After a 30-day public comment period, the new rule would be in effect for a period of two years.
“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,” Secretary of Homeland Security Alejandro Mayorkas said in a statement on Feb. 21.
Attorney General Merrick Garland said in a statement that the proposed rule “will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted.”
The Department of Justice (DOJ) is responsible for overseeing U.S. immigration courts and “ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process,” he added.
Some Democrats and certain advocates have opposed the proposal since its release.
Reps. Jerrold Nadler (D-N.Y.) and Pramila Jayapal (D-Wash.) said in a joint statement that the United States “should not be restricting legal pathways” to enter the country and “should be expanding them.”
“The ability to seek asylum is a bedrock principle protected by federal law and should never be violated,” they said, adding that they hope President Joe Biden would reconsider the proposal.
The American Civil Liberties Union said in a statement that the proposal “should not move forward,” adding that U.S. courts “have long recognized that a person’s decision not to seek asylum while in transit to the US does not override their need for protection here.”
The DHS’s announcement comes weeks after the Biden administration announced measures intended to slow illegal immigration from Cuba, Haiti, Nicaragua, and Venezuela. The measures included a deal with Mexico to send back up to 30,000 illegal immigrants from these countries every month, and a “parole” process allowing up to 30,000 people from these countries to obtain work authorizations in the United States on the condition that they enter legally.
Since the administration’s January announcement, apprehensions of illegal crossers at the Southwest border dropped from 221,675 in December 2022 to 128,410 in January 2023, or about a 42 percent decrease, according to Customs and Border Protection data.