Immigration advocates and some Democrats are condemning the Biden administration’s proposal to resurrect a Trump-era asylum transit ban.
The proposed rule would make most migrants who cross the border illegally ineligible for asylum. The rule would also apply to migrants who fail to apply for asylum in a country they travel through before reaching the southern border.
“It’s pretty much universally rejected by advocates who are standing at the ready to welcome people,” said Blaine Bookey, Legal Director at the Center for Gender & Refugee Studies.
Biden’s rule is very similar to an asylum ban the Trump administration tried to implement in 2019. The main difference is that Biden’s plan is limited to migrants who cross the border illegally, while Trump’s ban also included migrants who tried to cross in legal ports of entry. Biden’s plan also has more exemptions for unaccompanied children and migrants who use the Customs and Border Protection One app to schedule appointments.
The White House has pushed back on the Trump comparisons. But advocates said those comparisons are totally valid.
“The reality is, if the Trump ban applied to 99% of people, this is probably going to apply to 70% to 80% of people,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council.
The ACLU already announced plans to sue the Biden administration.
Organizations like the ACLU and Southern Poverty Law Center also sued the Trump administration over its ban. A federal judge ultimately ruled in their favor because the Trump administration failed to comply with the Administrative Procedure Act that governs how agencies should implement new rules.
The Biden administration seems to be complying with the Administrative Procedure Act. Officials announced a 30-day public comment period before the policy goes into effect on May 11. The final version of the proposed rule could change between now and then.
Democrats have criticized the Biden administration’s immigration policies, specifically pointing out that “Congress further made clear that seeking asylum at the border, ‘whether or not at a designated port of arrival,’ is lawful,” in a letter signed by more than 70 elected officials including Congressman Juan Vargas.
Representatives Mike Levin, Sara Jacobs, Scott Peters and Darrell Issa did not sign the letter.
Dozens of advocacy organizations issued statements condemning the proposed rule, including the Haitian Bridge Alliance, Alianza Americas, Las Americas Immigrant Advocacy Center, and American Friends Service Committee.
Advocates said banning asylum for people who cross the country illegally would be a historic reversal to U.S. asylum policy that dates back to World War II.
International and U.S. asylum laws are specifically written in recognition of how vulnerable migrants are, Bookey said.
"Often, bona fide refugees don’t have travel documents, or they’re fleeing under the cover of night with nothing but the shirt on their backs to save their lives,” she said.
Despite promising to restore a humane asylum system, the Biden administration is echoing Trump-era rhetoric that frames asylum as a burden, she said.
In defense of the blowback, administration officials pointed to recent efforts to expand legal pathways into the country, specifically humanitarian parole programs. Officials said this new policy is meant to encourage migrants to pursue legal pathways into the country instead of crossing illegally.
Some advocates aren’t buying that logic.
“For the administration to say 'we want to encourage people to go through these lawful pathways' is hypocritical because asylum is legal regardless of how you enter the United States,” said Reichlin-Melnick.
Biden has faced constant pressure from Republicans over his administration’s handling of the southern border.
Activists fear that pressure is getting to President Biden and impacting his policy decisions.
“The only metric that the administration is using right now is whether we’re seeing a reduction in numbers of people coming to the border,” Bookey said. “We’re just shoving people to die or be harmed somewhere else. Just not at our doorstep.”
