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Biden administration reverts to Trump era border policy

By Sarah May on
 February 23, 2023

In what some might argue is a tacit admission of the merit behind a key immigration policy implemented by former President Donald Trump, the Biden administration has just proposed new limits on asylum claims that closely mirror those deployed by the president's predecessor, as CBS News reports.

The approach at issue would allow the administration to disqualify certain categories of migrants from pursuing asylum claims and would facilitate their swift deportation, something the White House says is necessary to deal with the influx of migrants at the southern border.

Trump-esque policy proposed

According to CNN, the proposed rule spans 153 pages and would implement a presumption of ineligibility for asylum and “encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain.”

CBS News noted that the regulations would not go into effect until a 30-day public comment period ends and the administration has time to respond, but the intent is for the rules to be finalized by late spring, at which point, they would be in place for a period of two years, subject to potential extension, modification, or expiration.

The outlet further explained that back in 2019, the Trump administration put in place a similar regulation known as the “transit ban,” which penalized those who crossed the southern border and sought asylum without first pursuing such protections in a third country.

An administration official told CNN that the change represents “temporary measures” being “taken out of necessity,” taking issue with those making analogies to the Trump-era policy by contending that the Biden rules do not create a categorical ban on asylum.

Administration explains

Perhaps anticipating complaints from those who believe the proposed policy is akin to measures taken by Trump, the Biden administration highlighted the record volume of migrant apprehensions at the southern border in recent years and the resulting need for urgent action.

Administration officials explained, “In the absence of such a measure, the number of migrants expected to travel without authorization to the United States is expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances.”

Attempting to counter comparisons to the Trump policy, administration officials underscored that a number of exceptions are built in to its proposed rules, including those for unaccompanied minors, migrants with specific health concerns, and those attempting to flee “imminent and extreme” dangers in their home countries.

The administration also went to lengths to argue that the rule will have the effect of encouraging migrants to take advantage of other programs established to aid in legal entry into the country such as those designed to benefit Haitians, Cubans, Nicaraguans and Venezuelans who meet certain requirements.

Democrats voice opposition

It was not long after the administration announced its plans that Democrats in both congressional chambers began voicing their disapproval, as Fox News reports.

A statement issued jointly by Sens. Bob Menendez (D-NJ), Cory Booker (D-NJ), Alex Padilla (D-CA), and Ben Ray Lujan (D-NM) said, “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation.”

“We urge President Biden and [Homeland Security] Secretary [Alejandro] Mayorkas to reverse course and pave a better path forward that protects the right to asylum while addressing the real operational challenges at our Southern Border,” the statement from the senators added.

Also outraged by the Biden plan were Democratic Reps. Jerrold Nadler (NY-12) and Pramila Jayapal (WA-07), who also issued a joint statement saying, “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.”

Advocacy groups vow legal action

In addition to Democratic lawmakers voicing opposition to the administration's proposal, a number of immigrant advocacy groups are pledging to take the battle to into the courts, as NBC News reported.

National Immigrant Justice Center litigation director Keren Zwick vowed to fight against implementation of the Biden rules, positing that the group's chances of prevailing are strong.

“If the proposed asylum ban rule does what we expect it do to – unlawfully deprive access to asylum based on manner of entry and/or transit route, it would be invalid like the similar Trump administration rules that were found unlawful by federal courts,” Zwick said.

According to The Hill, a group of roughly 300 immigrant advocacy groups sent a letter to the Biden administration in January urging it not to implement the proposed changes, but whether the groundswell of opposition from the left will cause the president to change course is something that remains to be seen.