The United States could bar tens of thousands of migrants arriving at the US-Mexico border from claiming asylum under a proposal unveiled on Tuesday that would be the most wide-ranging attempt yet by Joe Biden’s administration to deter unauthorized crossings.
Under the new rules, the US would generally deny asylum to migrants who show up at the US southern border without first seeking protection in a country they passed through, mirroring an attempt by the Trump administration that never took effect because it was blocked in court.
The measure, while stopping short of a total ban, imposes severe limitations on asylum for people of any nationality except Mexicans, who don’t have to travel through a third country to reach the US.
The proposed rule establishes “a rebuttable presumption of asylum ineligibility” for anyone who passes through another country to reach the US border with Mexico without first seeking protection there, according to a notice in the Federal Register. Exceptions will be made for people with an “acute medical emergency”, “imminent and extreme threat” of violent crimes such as murder, rape or kidnapping, being a victim of human trafficking or “other extremely compelling circumstances”. Children traveling alone will also be exempted, according to the rule.
The measure, which was posted online on Tuesday, will be subject to a 30-day public comment period before it can be formally adopted. It would also be temporary and limited to a period of two years, with the possibility to extend it.
Biden, a Democrat who took office in 2021 and is expected to seek re-election in 2024, initially pledged to restore asylum access that was curtailed under his Republican predecessor. But advocates and some fellow Democrats have criticized him for increasingly embracing Trump-style restrictions as he has struggled to cope with record numbers of arriving migrants.
The measure is almost certain to face legal challenges; Donald Trump pursued a similar ban in 2019 but a federal appeals court prevented it from taking effect.
The American Civil Liberties Union (ACLU) vowed to fight the Biden rule in court, comparing it to the Trump restriction, which was dubbed a “transit ban” by activists.
“We successfully sued to block the Trump transit ban and will sue again if the Biden administration goes through with its plan,” said Lee Gelernt, the ACLU attorney who argued the Trump-era lawsuit.
Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California College of the Law, San Francisco, said the Biden proposal ignored dangerous conditions and limited asylum capacity in transit countries where migrants would be expected to seek protection.
“It’s a terrible example of trying to flout your domestic and international legal obligations,” she said.
The Biden administration began discussing the ban and other Trump-style measures last year as a way to reduce illegal crossings if pandemic-era restrictions allowing many migrants to be expelled back to Mexico ended. The administration is moving ahead with tougher asylum rules as the restrictions, known as Title 42, appear likely to sunset on 11 May, when the Covid-19 public health emergency terminates.
The homeland security and justice departments argued that surging numbers of migrants left them little choice. They anticipate illegal crossings to climb to between 11,000 and 13,000 a day if no action is taken after Title 42 ends, an even higher figure than the 8,600 daily crossings in mid-December as anticipation spread among migrants and smugglers that Title 42 was about to end.
“Without a meaningful policy change, border encounters could rise, and potentially rise dramatically” after the lifting of Title 42, the text of the proposed rule said.
Biden expanded Title 42 in January to expel additional nationalities while allowing some people from those countries to apply for legal entry by air via humanitarian parole if they have US sponsors. The parole program, for up to 30,000 Cuban, Haitian, Nicaraguan and Venezuelan migrants per month, would be one of the legal pathways the administration says would allow asylum seekers to circumvent the proposed restrictions.
Separately, migrants seeking asylum at the US-Mexico border could schedule an appointment at a US land port of entry using an app called CBP One. But since the CBP One effort launched in January, migrants say slots have filled up quickly.
Reuters and the Associated Press contributed reporting