Biden Administration Proposes Asylum Rule, Much Criticism Follows

February 21, 2023

The Department of Homeland Security and the Department of Justice released a joint press statement today:

“. . . today the Department of Homeland Security (DHS) and the Department of Justice (DOJ) are issuing a proposed rule to incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings, by placing a new condition on asylum eligibility for those who fail to do so. These steps are being taken in response to the unprecedented western hemispheric migration challenges – the greatest displacement of people since World War II – and the absence of congressional action to update a very broken, outdated immigration system.

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Under the proposed rule, individuals who circumvent available, established pathways to lawful migration – including those new processes announced on January 5 as well as a newly-available mechanism for migrants from any nationality to schedule a time and place to arrive at a port of entry – and also fail to seek protection in a country through which they traveled on their way to the United States, would be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet specified exceptions. Individuals who cannot establish a valid claim to protection under the standards set out in the proposed rule will be subject to prompt removal under Title 8 authorities, which carries a five-year bar to reentry. The proposed rule will be open to public comment in the Federal Register for 30 days. Additional detail can be found here.

The proposed rule is an emergency measure that is intended to respond to the elevated levels of encounters anticipated after the lifting of the Title 42 Order. As such, it is designed to be temporary in duration, applying to those who enter the United States at the Southwest land border for 24 months following the rule’s effective date and subsequent to the lifting of the Title 42 order.

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DHS and DOJ are taking these steps while continuing to call on Congress to modernize our immigration system, including our asylum laws. DHS will continue to monitor developments on the southwest border and will accelerate or implement additional measures, as needed, consistent with applicable court orders.” (bold added).

The proposed rule has produced immediate reactions from the press (and here), members of Congress, and immigrant rights organizations.

The Southern Poverty Law Center (SPLC) released the following statement from Erin Argueta, senior lead attorney for the SPLC’s Southeast Immigrant Freedom Initiative (SIFI), in response to the proposed rule: “It is beyond disappointing that the Biden administration is moving forward with an anti-asylum policy that is copied from the cruel transit ban issued by the Trump administration. The Biden administration should not continue putting obstacles in the way of people fleeing danger and seeking safety in the United States, which will only increase harm. Instead, this administration should be strengthening the legal right to seek asylum at the U.S. border, not proposing an unworkable alternative that will only increase harm.“The post-Title 42 world is not something to fear. While these past three years of Title 42 have effectively closed the U.S. border to all those seeking asylum — a step that harmed Black and Brown asylum-seekers in particular — the end of Title 42 should be a return to our adherence to our legal and moral obligations to provide a way for people to seek protection at our borders. We call on the administration to find ways to do that in an orderly way, and not continue to put up barriers.”

FWD.us President Todd Schulte released the following statement today in response to the proposed rule:

“President Biden’s proposed asylum ban is a terrible mistake that, if enacted, will have devastating consequences, almost certainly for decades to come. Today’s announcement is not a step to building a ‘humane and working immigration system,’ it is not something required in the absence of comprehensive immigration reform. And it is not about rebuilding a failed and broken system after the horrors of the Trump Administration.

“Today’s announcement proposes a massive restriction on people’s rights to seek refuge from persecution in the United States; it is an historic reversal of the basic protections established after World War II regarding displaced people, asylum, and refugees. If enacted, it would likely persist for decades.

“A policy that disqualifies individuals and families fleeing persecution from seeking safety in the U.S. – and for whom doing so might be the last and only hope – is a policy that the United States should not implement. At our best, America’s promise has included a commitment to those seeking refuge; we have presented our nation as a beacon of hope and refuge for the world. Today’s proposed policy is a rejection of this promise. We are deeply concerned about the harm it will do to people most in need today and tomorrow, as well as the signal it will send to people across the world in an era of ongoing global migration crises.

“The U.S. does not currently have modern, working, and safe legal pathways – either for family reunification, for work, or to seek refuge – which allow people to come to the U.S, including for people from most countries in the Western Hemisphere. The Biden Administration took a positive step last month with the announcement of new parole pathways for four countries. That they are now responding to a lawsuit against these pathways with a massive enforcement-only policy is the wrong approach—and if these pathways are blocked in court, we cannot help but question what will come next. When the Biden Administration says building legal pathways is the right thing to do to help people migrate safely and to reduce pressure at the border, they are correct. This transit ban will increase chaos at the border, pushing people to cross between ports of entry.

“The proposed rule’s stated expiration date of two years from enactment makes this no better: everyone should expect that, if enacted, this administration’s policy will remain for decades. One need look no further than Title 42’s continued existence – a policy which, unlike this one, the Biden Administration inherited from the prior administration – to see the fallacy in this concept.

“Earlier today, after having returned from Ukraine to Poland, President Biden proudly proclaimed to the world: ‘Freedom. There is no sweeter word than freedom. There is no nobler goal than freedom. There is no higher aspiration than freedom. Americans know that and you know it.’

“Families belong together – safe and free. In a harsh, imperfect world, we know that policies that will ban the most vulnerable from a basic right to seek refuge are wrong – be they people yesterday, today, or tomorrow, from Haiti, Poland, Ukraine, Cuba, or Afghanistan.

“When President Biden previewed his intention to propose this rule last month, we called on him and his administration to reverse course and instead honor his campaign promises to build diverse, working legal pathways so that people can safely come to the U.S. We are deeply saddened by today’s announcement, and call on the President and his team to reverse course and not to move ahead with their proposed asylum ban.”

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