Rights groups: Biden administration's proposed asylum restriction is Trump-era policy anew

Published: Thursday, February 23, 2023 - 2:35pm
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The Biden administration has formally announced plans to introduce a new restriction on asylum seekers at the U.S.-Mexico border.

Under the new proposed rule, asylum seekers must ask for protection in a country they pass through on their way to the U.S, or use other pathways laid out by the administration this year, before seeking asylum at the U.S.-Mexico border. If they don't, they’ll be denied access to asylum in the U.S. with few exceptions, despite U.S. and international laws that require it. 

The new rule resuscitates a similar, Trump-era protocol that forced migrants to ask for protection in another country before doing so at the U.S.-Mexico border. In a press call Tuesday, Lee Gelernt, a lawyer with the ACLU, said his organization challenged the Trump-era rule in court and won.

"There is just no functioning asylum process in those countries so that’s just sort of an illusory promise, and that's why we got it struck down," he said.

The ACLU also successfully stopped another rule enacted under Trump that required asylum seekers to go to a port of entry to ask for protection. Gelernt said the Biden administration’s proposal is a combination of those two Trump-era policies, and his organization is ready to challenge it again.

"There are cosmetic changes, and as everyone pointed out, the fact that there are a few legal pathways for a few people does not change the basic illegality of the rule."

 In January, Department of Homeland Security Secretary Alejandro Mayorkas introduced new humanitarian parole programs for Nicaraguans, Haitians, Cubans and Venezuelans, while also expanding Title 42 border restrictions to include those nationalities. Asylum seekers apply for the parole programs from their home countries and must have a U.S. sponsor and the money to fly to the U.S. They also can't apply for the program from the U.S.-Mexico border, and are ineligible for the program if they're caught crossing the border between ports of entry.

The Biden administration has argued its new asylum restriction is not the same as the one enacted under the Trump administration, because it's being introduced in conjunction with pathways to enter the U.S., like the new parole programs.

But Guerline Jozef, co-founder and executive director of the advocacy group Haitian Bridge Alliance, said those pathways aren’t realistic for people who are fleeing their homes. 

"By having those deterrent policies, people will try to find alternative ways to get protection, because when your arm is in the mouth of a shark, you have to escape," she said on the press call Tuesday. "The administration is literally creating an ecosystem where people will have no other choice but to end up in the hands of coyotes and human traffickers in search of protection."

The proposed rule went live on the Federal Register on Thursday and invites public comment for the next 30 days.

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