Biden admin announces policy to limit asylum claims at southern border as Title 42’s end looms

The Biden administration on Tuesday unveiled a policy to limit asylum claims at the southern border -- a policy already receiving fierce pushback from Democrats and immigration activists -- as it prepares to allow Title 42 expulsions to expire in a few months.

The Department of Homeland Security and Department of Justice announced the new proposed rule which makes migrants automatically presumed to be ineligible for asylum if they have crossed into the U.S. illegally and have failed to claim asylum in a country through which they have already traveled.

Unaccompanied children would be exempt, and there would be other factors that could rebut the presumption, including an acute medical emergency, being a trafficking victim, and facing an "extreme and imminent" threat to life or safety. But all others would be presumed to be ineligible and therefore removable.

Migrants can still enter the U.S. to claim asylum if they have been denied by a third country, if they present themselves at a port of entry after scheduling an appointment via the new CBP One App or if they are paroled into the U.S. They can also challenge the presumption. The policy would be a temporary one, and in place for two years.

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The rule will not immediately go into effect as it goes through a public comment period, and is intended to go into effect when Title 42 ends on May 11. The order, which has been used by both Biden and Trump administrations to quickly expel hundreds of thousands of migrants due to the COVID-19 pandemic, will end when the public emergency ends. 

The end of Title 42 has raised the specter of an even bigger surge in migration than the border has already seen. DHS had previously predicted last year that there could be up to 14,000 migrant encounters a day when the order ends. Both Democrats and Republicans have raised concerns over the Biden administration’s plan to deal with the surge.

The policy announced Tuesday is in some ways similar to the "transit ban" which was proposed by the Trump administration and ultimately blocked by the courts. Administration officials have repeatedly rejected comparisons to the transit ban, citing the existence and expansion of legal pathways available to migrants. They have argued that, unlike in the Trump administration, pathways remain open to claim asylum.

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"We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners," Homeland Security Secretary Alejandro Mayorkas said in a statement. 

"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," he said.

The border saw record levels of migrant encounters in FY21 and FY 22. There were a historic 251,000 migrant encounters in December and over 156,000 in January. While those numbers mark historic highs for their months, the administration has tied the drop between the months to the rollout of border measures it unveiled in January.

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Those policies include an expansion of Title 42 to Nicaraguans, Venezuelans, Cubans and Haitians, combined with a humanitarian parole program that allows up to 30,000 of those nationalities to be flown into the U.S. each month if they meet certain conditions. Republican-led states have sought to block the program in the courts, calling it an illegal misuse of parole authority. The administration has also pushed Congress to pass a sweeping immigration reform bill that would include, among other inclusions, a pathway to citizenship for millions of illegal immigrants. 

However, it is from the left, not the right, that this latest rule will likely face fierce opposition. Immigration activists have winced at the idea of any restrictions on any migrant claiming asylum -- even if they have traveled through multiple countries without seeking protection and even if they enter the U.S. illegally between ports of entry.

The American Civil Liberties Union, which fought the lawsuit trying to bring down Title 42, has already said it intends to sue to take down this new rule proposed on Tuesday.

"We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban," Lee Gelernt, a senior attorney with the ACLU, told the L.A. Times.

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Meanwhile, Democrats in the House immediately took aim at the rule, with Democrats on the House Judiciary Committee saying they were "deeply disappointed" in the rule.

"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."

Fox News' Bill Melugin contributed to this report.