Immigration Law

Legal advocates compare proposed asylum rules to Trump-era restrictions

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AP Title 42 migrants

Migrants stand near the U.S.-Mexico border in Ciudad Juarez, Mexico, on Dec. 19, 2022. Photo by Christian Chavez/The Associated Press.

President Joe Biden proposed new asylum restrictions Tuesday that some legal advocates are condemning for being too similar to measures imposed under the former Trump administration.

According to the new rule, which was issued jointly by the Department of Homeland Security and the Department of Justice and includes a 30-day public comment period, migrants must schedule an appointment at a U.S. border port of entry if they wish to seek asylum or other forms of protection. They must also seek asylum or other forms of protection in one of the countries that they pass through on their way to the United States.

Otherwise, migrants will be deemed to be ineligible for asylum, except in certain cases involving medical emergencies or other extreme threats to their safety.

“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,” said Alejandro Mayorkas, secretary of the DHS in a statement Tuesday.

The American Civil Liberties Union contends that the Biden administration’s proposal mimics illegal asylum bans initiated by former President Donald Trump and later halted by federal courts.

“This asylum ban is, at its core, Trump’s asylum ban under a different name,” said Anu Joshi, deputy director of the National Political Advocacy Department at the ACLU, in a statement Tuesday. “It will leave the most vulnerable people in much the same position as Trump’s policy did—at risk and unfairly denied the protection of asylum for reasons that have nothing to do with their need for refuge.”

Karen Musalo, the director of the Center for Gender and Refugee Studies at the University of California College of the Law in San Francisco, told Reuters that the Biden administration’s proposal ignores limited asylum capacity and dangerous conditions in countries where migrants are required to first seek protection.

“It’s a terrible example of trying to flout your domestic and international legal obligations,” Musalo told Reuters.

Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, also reacted to the proposal Tuesday.

“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration,” said Vignarajah in a statement published by the Washington Post. “This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements and flagrantly violates President Biden’s own campaign promises to restore asylum.”

The proposed rule would take effect in May and expire after two years. According to the Biden administration, it is necessary to curb the expected migrant surge after Title 42 ends. The COVID-19-related restrictions allowed the Centers for Disease Control and Prevention to ban immigrants from entering the United States if needed to help prevent the spread of disease and appears likely to sunset May 11.

“While a number of factors make it particularly difficult to precisely project the numbers of migrants who would seek to cross the border, without authorization, after the lifting of the Title 42 public health order, DHS encounter projections and planning models suggest that encounters could rise to 11,000 [to] 13,000 encounters per day, absent policy changes and absent a viable mechanism for removing Cuban, Haitian, Nicaraguan and Venezuelan … nationals who do not have a valid protection claim,” according to the text of the proposed rule.

The Associated Press, Law360 and CNN also have coverage of the Biden administration’s proposed new rule.

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