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The Biden administration announced a plan on Tuesday that would prohibit migrants from seeking asylum in the United States if they had not already begun the process during their journey to the southwest border. Biden officials said that the new policy is necessary “in anticipation of a potential surge of migration” once Title 42, a public health measure the Biden and Trump administrations employed to turn away migrants entry from the border during the pandemic, ends as it is expected to in mid-May. The federal government also hopes the rule will reduce human smuggling and overcrowding at border facilities, according to the policy, scheduled to be published Thursday.
The rule, proposed by the Department of Homeland Security and the Department of Justice, would be a temporary measure to prohibit migrants who come to the U.S-Mexico border from seeking asylum if they have not sought it elsewhere on the way there or pursued a legal avenue of migration to enter the United States. Once Title 42 ends, the new rule would go into effect and last two years.
The rule would create a “rebuttable presumption of asylum ineligibility” for migrants who do not follow the rule’s conditions, but says it would not include cases where people:
▪ Are coming to the U.S. under one of the government’s parole processes
▪ Make an appointment with immigration authorities at a port of entry through a mobile application called CBP One or can prove to the federal government that they could not do so, or ▪ Have applied and been rejected for asylum protection elsewhere. Meanwhile, people experiencing serious or life-threatening medical emergencies who cannot get treatment for those conditions elsewhere are exempt if they can prove their cases, as are people whose lives are in danger or who are victims of sex trafficking and human trafficking. Biden administration officials said on Tuesday during a conference call with reporters that the policy was made “out of necessity” because Congress has not passed immigration reform. They also emphasized that it complemented parole processes such as the ones announced last month for Cuba, Haiti, Venezuela, and Nicaragua, which allow people from those countries to live and work in the United States for up to two years. “It is intended to fill the void that Congress has left by taking no action,” the official added. “To be clear, this wasn’t our first preference, or even our second.”
The new policy would apply to all migrants, regardless of nationality, officials said. a tortious interference lawsuit from that?” asked Kevin Guthrie, director of the Division of Emergency Management.
“What we have seen is, when there is a real consequence to crossing irregularly between ports, we see a dramatic drop,” a senior administration official said, “People avail themselves of the legal pathways. And this has a really positive impact, not only on our resources, CBP, on the ground, but also on border communities. So that is a big part of our policy.” Department of Homeland Security Secretary Alejandro Mayorkas had mentioned the rule’s creation when the Biden administration announced the parole processes for Nicaragua, Cuba, and Haiti last month.
Dozens of Democratic lawmakers sent a letter to President Biden on Jan. 25, saying that the proposed rule created a “transit ban” like the one the Trump administration had established and that a court had struck down because it was in violation of asylum laws. “As the administration well knows, current conditions in Mexico — the primary transit country — cannot ensure safety for the families seeking refuge in the United States,” the letter said. Following widespread criticisms from immigration advocates and lawmakers, Mayorkas said during a recent interview with MSNBC that the proposed regulation was not a “Trump-era policy.”
Biden officials also pushed back on comparisons to Trump’s policies on Tuesday, insisting that the new rule is not a categorical ban on migrants seeking asylum. “This is definitely different, in that we are offering a rebuttable presumption, and not barring access to asylum like the prior administration did,” a second senior administration official told reporters. “Unlike the transit ban, the proposed rule does not require non-citizens to seek asylum in a third country. It allows individuals to seek asylum in the U.S., so long as they enter through a lawful pathway, including scheduling an appointment through the CBP One app, or through one of these established lawful processes.”
Bilal Askaryar, interim campaign manager for Welcome with Dignity, an asylum advocacy organization, said in a statement on Tuesday that “Trump’s cruel playbook will now be Biden’s legacy.” Immigration advocate Guerline Jozef, executive director at Haitian Bridge Alliance, described the rule as “absurd” and “illegal” and said it would “effectively shut down our asylum system.” “President Biden campaigned on restoring the soul of America, which includes restoring our asylum system. Instead, President Biden has made it a practice of recycling Trump-era policies, like this asylum transit ban,” she said in a statement. Homeland Security and Justice will be taking comments on the proposed rule for the next month. Officials said they would welcome comments and feedback. This story was originally published February 21, 2023, 4:00 PM. SYRA ORTIZ BLANES
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