The Biden-Harris administration has proposed a federal rule that would amount to a near-total asylum ban. If implemented, a migrant who crosses the southwest border without U.S. authorization, has not followed the port of entry’s rules, requirements, and existing processes to seek asylum, and was denied asylum in a third country which they traveled through would be ineligible for asylum unless on a certain exception.
The new rule comes at the end of Title 42, an immigration policy decried by immigration advocates as xenophobic and racist. The obscure health law was implemented and weaponized by the Trump administration at the start of the COVID-19 pandemic to expel migrants without allowing them to apply for asylum or other humanitarian protections.
“It is repackaging Trump’s policy under a different name, and ultimately will cause significant harm and suffering, in addition to violating U.S. and international law,” said Tasha Moro, the communications director for Justice Action Center.
Immigration advocates said they knew this was coming. In January, the Biden administration announced changes to the Trump-era policy that ends May 11, but immigration advocates like Moro said the proposed rule conflicts with the promises the president made during his campaign.
The proposed federal rule presents additional steps for migrants to fulfill, as the individual must have a sponsor currently living in the U.S. who has the financial ability to provide support. The migrant must also arrive through a direct flight to the U.S. If not, they face additional hurdles to enter the country.
“Obviously, they are acting out of desperation to make that arduous journey on foot to the U.S.,” Moro said. “And so this will really harm folks who are quite desperate.”
“We’re certainly supportive of there being additional pathways for people to be able to make their way to the U.S. and seek protection when they’re in need that don’t require them traveling through the Darien Gap, an extremely dangerous journey. But not as a trade-off for access to asylum at our border,” said Blaine Bookey, the legal director for the Center for Gender and Refugee Studies.
Bookey said the proposed federal rule mirrors something out of the Trump administration’s playbook.
“The president definitely, from the campaign trail to early executive orders, made it very clear that this administration would restore access to asylum and really be a break from the xenophobia and the racism of the past administration,” Bookey said. “The administration is extremely clear that their intended purpose behind this is to reduce the numbers of people seeking asylum at our border.”
To ensure lawful pathways to seek asylum, the Department of Homeland Security notes that migrants seeking asylum can apply on the CBP One mobile app. However, Moro said technical issues with the mobile app have created several problems.
“We’ve seen a host of problems with the app that families and individuals have been experiencing. Two major ones are that the app freezes or times out and shows error messages in English,” Moro said. “The other pretty awful part of this software is this anti-Blackness we’ve seen baked into it, where the facial recognition software does not accurately recognize folks with darker skin tones.”
Carl Bergquist, general counsel of the Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), echoes that many of immigration advocates’ assumed the administration would uphold its promises.
“Not everyone who’s fleeing from harm or trying to seek asylum has the privilege of having these qualifications,” Bergquist said, adding that the administration’s rationale behind the proposed policy is problematic.
“They say, ‘Oh, we have to help the states and the local jurisdictions, the cities and counties and the NGOs, who … won’t be able to handle this situation. So we’re going to do this to help them,’” Bergquist said. “If you ask CHIRLA, we don’t need that kind of help. We want to help the asylum-seekers.”
Another challenge that immigration advocates are wary about is the time frame the public has to submit for public comment on the Federal Register.
“The comment period for this proposed rule is only 30 days long. Usually, these comment periods are 60 days,” Moro said. “It leads us to wonder how much the administration could possibly implement based on the feedback it gets from the public before this proposed rule is said to be implemented.”
In response to the proposed federal rule, the Justice Action Center has partnered with the American Immigrant Council and Welcome with Dignity to implement a comment campaign. However, immigration advocates said the current administration needs to speak with those on the ground at the nation’s southern border to find a solution.
“It’s not too late for the administration to listen—whether it’s asylum-seekers themselves, who are the ones they should listen to the most, organizations like ours that work with them, [or] many elected officials,” Bergquist said.
“Part of the solution here that we have not seen from the Biden administration is engagement with direct service providers and a commitment to building and funding welcoming centers that can help folks navigate this very arduous and complex process,” Moro said.
Even though immigration advocates sued the Trump administration and challenged the previous administration’s immigration policies, Bergquist said there was still an opportunity to improve the asylum-seeking process.
“There were a lot of problems with the processes that existed prior to the previous administration or prior to the pandemic. But at least people could make their case,” Bergquist said. “Right now, what we’re seeing is using different policy justifications, attempts to prevent people from even applying in the first place.”
As for the future of migrants seeking asylum in the U.S., Bookey said, if implemented into law, the proposed federal rule sets a dangerous precedent for the future of asylum.
“The only metric they’re using for the success of their border policies at the moment is whether whatever policy they put in place deters enough people from making it to the U.S. border to actually seek protection,” Bookey said. “When that’s not resolving any of the underlying problems … just shoving people to die somewhere else further away, for a border.”
“It’s really unfortunate that it seems to the public that the border is either completely open or completely closed, according to who might be in office, and that’s not the reality,” Moro said.