Biden to replace Trump migration policy with Trump-esque asylum policy

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As the White House gears up for the end of one Trump-era border policy this spring, it has its sights set on resurrecting a version of another much-maligned immigration program put in place under the previous administration.

The Departments of Homeland Security and Justice on Tuesday announced a proposed rule that will bar some migrants from applying for asylum in the U.S. if they cross the border illegally or fail to first apply for safe harbor in another country. The rule was previewed by President Joe Biden in January. Following a 30-day public comment period, it will be implemented upon the May 11 end of the Covid public health emergency, according to a senior administration official who briefed reporters.

May 11 is also the end date of the Title 42 public health order currently being used to bar entry to most migrants at the southern border. The rule announced on Tuesday would stay in place for two years following its effective date.

The new proposal — which immigrant advocates refer to as the “transit ban” or the “asylum ban” — is the White House’s most restrictive border control measure to date and essentially will serve as its policy solution to the long-awaited end of Title 42. Within minutes of its posting, the Biden administration faced a flood of backlash from immigrant advocates and Democrats who accused officials of perpetuating the Trumpian approach to border politics that Biden pledged on the campaign trail to end. Threats of lawsuits also began to percolate.

Former Biden White House official Andrea Flores, who now serves as chief counsel for Sen. Bob Menendez (D-N.J.), condemned the administration for resurrecting a policy that “normalizes the white nationalist belief that asylum seekers from certain countries are less deserving of humanitarian protections.”

Administration officials in their call with reporters rejected the notion that the proposed regulation was like the Trump transit ban, noting it was not a “categorical ban” on asylum seekers. Instead, they said, the administration had expanded “existing lawful pathways” through the parole programs, and that the measures were not intended to curb people from seeking asylum but to help ensure order at the southern border.

The Biden administration has repeatedly warned of an influx of migrants amid the end of Title 42, which has been used more than 2 million times to expel asylum seekers on public health grounds. Administration officials on Tuesday said the new rule will help the administration manage a bogged-down border and asylum processing system.

But for critics, those utterances and the implementation of the new rule only underscored the degree to which the administration continues to see the southern border as a political issue, and not a humanitarian challenge, facing Biden’s presidency.

Krish O’Mara Vignarajah, president of Lutheran Immigration & Refugee Service and a former Obama official, said the rule "reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration." Rep. Chuy Garcia (D-Ill.) called on Biden to “abandon this misguided policy now.” And Sergio Gonzalez, president of the Immigration Hub, said the move “flies in the face” of Biden’s campaign promise to “rebuild a fair, humane and orderly immigration system.”

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead attorney in Title 42-related lawsuits, said in a statement to POLITICO that he’s prepared to take legal action.

“We successfully sued to stop the Trump asylum bans and will sue again if the Biden administration enacts these anti-asylum rules,” Gelernt said.

Tuesday’s proposed regulation was first floated in January, when Biden unveiled a new border measure that involved accepting 30,000 migrants a month from Cuba, Haiti, Nicaragua and Venezuela while cracking down on those who fail to use the plan’s legal pathways. The policy forced migrants to apply for asylum from their home country, while expelling those who try to enter the U.S. unlawfully from Mexico. Migrants were only approved if they had a verified sponsor and were allowed to enter the U.S. by air.

The number of migrants and asylum seekers attempting to cross the border has dropped by 40 percent since December, which administration officials credit to the new measures.

Administration officials on Tuesday said they were looking into expanding the humanitarian parole program for other nationalities and are “working closely with our partners across the hemisphere to encourage them to also expand their legal pathways.”

During his speech last month, Biden also unveiled a new app for asylum seekers and other migrants to schedule appointments to be considered for entry into the United States. Advocates scoffed at the administration’s pushback on Tuesday.

“While the Biden admin has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry,” O’Mara Vignarajah said.

Administration officials also used Tuesday’s announcement to criticize Congress, arguing that the White House has been left to roll out new policies to fill the “void” left by inaction on the Hill.

“To be clear, this was not our first preference or even our second. From day one, President Biden has urged Congress to pass comprehensive immigration reform and border security measures to ensure orderly, safe and humane processing of migrants at our border,” a senior administration official said.