WASHINGTON – As President Joe Biden's administration prepares for the end of regulations tied to the coronavirus pandemic that have severely limited the ability of asylum seekers to enter the U.S., it has proposed a rule that could dramatically alter who's allowed to claim asylum at the southern border. This rule comes as Biden is under intense criticism from Republicans intent on making immigration a key issue in the next election. Some of the president's immigration stances, including this rule, have sparked criticism from immigration advocates and even Democratic allies.
A look at the rule:
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WHAT'S THE NEW RULE AND HOW DOES IT COMPARE TO WHAT TRUMP DID?
The rule was announced Tuesday and will be formally published Thursday. It will generally deny asylum to migrants who show up at the southern border without first seeking protection in a country they passed through. The rule generally requires people to use what the administration calls “lawful, safe and orderly pathways” — such as applying for an asylum appointment through a smartphone app or country-specific humanitarian parole programs — to get to the U.S. However, children are exempt.
Critics say this is essentially reproducing some of the worst policies of former President Donald Trump, who tried numerous ways to limit migration. Melissa Crow, a lawyer with the Center for Gender & Refugee Studies, called the proposal a “mashup” of two things Trump tried: barring people from entering the country between ports of entry and making migrants ineligible for asylum if they passed through another country before getting to the U.S. and didn't apply for protection there.
Crow said the biggest difference between the Biden proposal and the Trump transit rule was that under Trump, people were automatically ineligible for asylum. Under the Biden proposal, it's a “rebuttable presumption of ineligibility for asylum” and some exceptions are allowed. But she called those exceptions “narrow” and said ultimately U.S. law allows people to apply for asylum at the border.
WHAT DOES THE ADMINISTRATION SAY?
The administration essentially described this rule as a necessary tool for when the pandemic-era restrictions called Title 42 end. Title 42 is shorthand for immigration restrictions put in place at the beginning of the COVID-19 pandemic to limit the disease's spread.
The administration says once Title 42 goes away, daily encounters between border officials and migrants attempting to enter the U.S. on the southern border could rise as high as 13,000. They compare that with the less than 1,600 daily encounters seen from 2014 to 2019. Without this rule, they say immigration would “increase significantly, to a level that risks undermining the ... continued ability to safely, effectively and humanely enforce and administer U.S. immigration law."
They emphasize that this is temporary — it's supposed to run for two years — and that at the same time they're offering legal pathways for people to get to the U.S. Specifically, the rule repeatedly mentions a program announced in January that allows people from four countries — Cuba, Haiti, Nicaragua and Venezuela — the opportunity to come to the U.S. as well as a smartphone app that migrants can use to request an appointment at the border to present their asylum case. All of this, they argue, differentiates what they're doing from Trump policy.
The administration has described its strategy as a carrot and stick approach but critics say it's not enough carrot. Krish O'Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said they applaud the expanded pathways for those four countries announced in January but question where that leaves migrants from other countries. She says it favors people with resources who can afford the necessary requirements of finding a financial sponsor and buying a plane ticket to the U.S. And some people are so at risk, they simply cannot wait in their country for a humanitarian parole slot. Critics have also highlighted technological problems with the app.
The rule also faced criticism from the right. The Federation for American Immigration Reform said in a statement that the rule isn't designed to halt migrants as much as make the process more orderly: “In other words, the real objective is not to end large-scale asylum abuse, but rather to get them through the next election cycle.”
WHAT'S MEXICO'S ROLE IN THIS?
The U.S. shares a roughly 2,000-mile-long southern border with Mexico, and the hundreds of thousands of people who try to get asylum at the southern border every year have to pass through at least some portion of Mexico to get to the U.S. All that means that if the U.S. wants to keep people from entering the U.S. it clearly would be better to have Mexico's help.
The U.S. said in the rule it was in “close consultation” with the Mexican government and “other foreign partners" to accept the return of third-country nationals once Title 42 use goes away. The U.S. also said the Mexican government's decision to start taking back nationals from the four countries in January was also partly contingent on the U.S. creating new processes for people from these countries to actually get to the U.S. without taking the dangerous land journey.
So far Mexico has not commented on the proposal.
This rule wouldn’t affect Mexicans because they don’t have to pass through a third country to get to the U.S.
WHAT ABOUT OTHER COUNTRIES IN THE REGION?
The rule generally denies asylum to migrants who come to the southern border without first seeking protection in a country they passed through. The rule highlights work the U.S. has done to improve legal migration in other countries across the western hemisphere and touts asylum successes in Mexico, Belize, Costa Rica, Colombia and Ecuador. Mexico, for example, has emerged as one of the “top countries receiving asylum applications in the world.” Ecuador is currently hosting more than 500,000 people displaced from crisis-ridden Venezuela, the rule notes.
But immigration advocates contend that other countries don't always offer the same protections that the U.S. does.
WHAT HAPPENS NEXT?
Once the rule is published, there's a 30-day comment period before it can become final. The rule goes into effect when Title 42 goes away. That is expected May 11. But the fate of Title 42 has pingponged over the last year as Republican-leaning states have sought to keep it in place through lawsuits, so it's not a guarantee that Title 42 will go away come May 11. Immigration advocates have indicated they'll sue if and when this Biden administration rule goes into effect. And they're planning to flood the Federal Register with comments opposing it.
But Elizabeth Taufa of the Immigrant Legal Resource Center said the fact that the administration used the 30-day comment period, instead of the more traditional 60-day comment period that she'd expect for such a substantive change, indicates that the rule is unlikely to change.
It's a “good indication that they're dug in on this,” she said.
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