The Biden administration proposed rules Tuesday to block illegal immigrants from jumping the border to file bogus asylum claims, embracing a Trump-style policy that President Biden once labeled a “humanitarian disaster.”
Under the tighter proposed rules, those who cross through other nations to reach the U.S. border would be presumed ineligible for asylum. Instead, they would be encouraged to find legal pathways to enter the country.
The proposed policy amounts to an acknowledgment that as bad as the border situation is now, it could get worse when the administration shuts down the pandemic-related Title 42 border expulsion policy this spring.
Homeland Security Secretary Alejandro Mayorkas said the proposal is an attempt to channel the chaotic flow of illegal immigration into legal avenues.
“As we have seen time and time again, individuals who are provided a safe, orderly and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry,” he said.
His plan is likely to face legal challenges, becoming the latest of Mr. Biden’s immigration policies to wind up in court.
Democrats in Congress pronounced themselves “deeply disappointed” and called on Mr. Biden to reverse his policy. Immigrant rights groups said the president had abandoned his principles.
Biden administration officials rejected those claims but acknowledged that they didn’t want to go down this route.
“This was not our first preference or even our second,” one official told reporters.
The official said the administration’s hand was forced by the record numbers of people seeking to sneak into the U.S. and by inaction on Capitol Hill, where Mr. Biden’s calls for a rewrite of immigration laws have gone nowhere.
Mark Morgan, the top border official in the latter part of the Trump administration, rejected the Biden team’s attempt to blame external factors for the chaos.
“The truth is this crisis is a self-inflicted intentional wound,” he said.
The new policy aims to plug a loophole in immigration law that allows migrants who lack any viable claim to asylum to show up at the border and attempt to make a claim.
The migrants usually cross through multiple countries to reach the U.S. and are often eager to be caught by Border Patrol agents. They are processed and released into the U.S., where they gain a foothold while they await court proceedings that can take five years or more to complete.
That foothold has proved an incomparable lure, fueling the record-shattering border surge.
Officials warned Tuesday that as bad as things are, they could get worse when the Title 42 pandemic border policy expires on May 11. Illegal crossings could nearly triple from 5,000 a day in January to as many as 13,000 a day, government officials said in the 153-page regulatory filing.
That would overwhelm the immigration system, officials said.
The proposed policy would take effect May 11 and last up to two years, though immigration rights activists said they doubt it would be easy to discard once it is in place.
Biden officials said the plan should still protect true asylum-seekers — those fleeing actual persecution — while denying those who are using the asylum system as a cheat. Those who prove they are fleeing an actual threat of rape, torture or killing would be exempt, as would juveniles who show up without a parent.
The Trump administration, facing a smaller border surge in 2019, enacted asylum restrictions to bar claims from those who crossed through other countries to reach the U.S.
Biden officials bristled at the Trump comparison. They said the Trump policy was a categorical ban on asylum, while their proposal would allow avenues to make claims, albeit within narrower paths that the administration has created.
“This is not the Trump transit ban,” an official said. “The purpose of this is not to cut off people seeking asylum.”
Immigrant rights activists rejected that assertion.
“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration,” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service.
She waved aside the new tools, such as a smartphone app, which the Biden team said give asylum-seekers other ways to apply. She said that is unlikely to help the most vulnerable.
“Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values,” she said.
Mr. Biden previously agreed with that sentiment.
During the 2020 presidential campaign, he blasted Mr. Trump’s policies as inhumane.
“The Statue of Liberty has long been a beacon to people ‘yearning to breathe free’ around the world — including asylum-seekers and refugees,” his campaign website said. “But the Trump administration has worked against this tradition to drastically restrict access to asylum in the U.S., including imposing additional restrictions on anyone traveling through Mexico or Guatemala.”
When Mr. Biden took office, he quickly erased the series of policies that the Trump team put into place. He halted border wall construction, put limits on targets for deportation, canceled the “remain in Mexico” policy and erased the asylum cooperative agreements that allowed the U.S. to block asylum-seekers who crossed other nations to reach the U.S.
The result was immediate chaos at the border.
The Border Patrol counted roughly 71,000 arrests in December 2020. The number was more than 200,000 by July 2021 and neared 225,000 in May 2022.
The Department of Homeland Security says that when Title 42 ends, the tally could approach 400,000 a month unless action is taken.
Some immigration activists said Mr. Biden is caving on his principles to avoid political damage as he prepares to run for reelection.
Officials rejected the suggestion that politics was fueling decision-making.
The proposal was issued by the Homeland Security Department and the Justice Department. It gives the public 30 days to offer comments before officials finalize it. They expect to have it in place before Title 42 expires in May.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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