Biden administration proposes Trump-like immigration policy

The Biden administration said Tuesday that it will generally deny asylum to migrants who show up at the US southern border without first seeking protection in a country they passed through, mirroring an attempt by the Trump administration that never took effect because it was blocked in court.

The measure, while stopping short of a total ban, imposes severe limitations on asylum for any nationality except Mexicans, who don't have to travel through a third country to reach the U.S.

The measure is almost certain to face legal challenges. President Donald Trump pursued a similar ban in 2019 but a federal appeals court prevented it from taking effect.

The Biden administration rule proposed Tuesday has to first go through a 30-day public comment period before it can be formally adopted. If adopted it would remain in place for two years.

Administration officials expect the rule will take effect when a pandemic-era rule that denies asylum on grounds of preventing the spread of COVID-19 ends. That rule, known as Title 42 authority, is set to expire May 11 but has been delayed twice by legal challenges from Republican-led states.

The Homeland Security and Justice Departments argued that surging numbers of migrants left them little choice. They anticipate illegal crossings to climb to between 11,000 and 13,000 a day if no action is taken after Title 42 ends; that's even higher than the 8,600 daily crossings in mid-December as anticipation spread among migrants and smugglers that Title 42 was about to end. At the last minute the Supreme Court kept it in place.

The proposed rule establishes “a rebuttable presumption of asylum ineligibility” for anyone who passes through another country to reach the U.S. border with Mexico without first seeking protection there, according to a notice in the Federal Register. Exceptions will be made for people with an “acute medical emergency,” “imminent and extreme threat” of violent crimes such as murder, rape or kidnapping, being a victim of human trafficking or “other extremely compelling circumstances.” Children travelling alone will also be exempted, according to the rule.

The rule largely calls on prospective migrants to follow legal pathways to apply for asylum such as using the CBP One app, through which prospective migrants can schedule an appointment to apply to appear at a border entry point to apply for asylum. The administration portrayed these efforts as a way to protect migrants from the dangerous journeys as they travel north to the U.S. and allow the U.S. border entry points to manage the migrant flows in a “safe and efficient manner.” But critics have said the app has been beset by technical problems and its not clear how many appointments are available every day.

U.S. officials insist the measure proposed Tuesday is different from Trump's, largely because there is room for exemptions and because the Biden administration has made other legal pathways available, particularly humanitarian parole for Cubans, Haitians, Nicaraguans, Venezuelans and Ukrainians.