The proposed rule, announced on Tuesday, would give border officials the power to turn away asylum seekers who “circumvent available, established pathways to lawful migration” or who fail to seek protection in the countries they travelled through to arrive in the US.
In addition, individuals who violate the rule would be barred from re-entering the US for five years.
Described as an “emergency measure”, the proposal anticipates the end of Title 42, a controversial policy implemented in 2020 under former Republican President Donald Trump that has been used to expel asylum seekers in the name of public health.
In a joint statement on Tuesday, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) described the proposed policy as a “temporary” measure designed to address the spike in border crossings “anticipated after the lifting of the Title 42 Order”, an act that has yet to occur.
But while Biden, a Democrat, has sought to distance himself from his predecessor’s border policies, critics denounced Tuesday’s announcement as a continuation of Trump’s approach to immigration and security.
“Our courts have long recognised that a person’s decision not to seek asylum while in transit to the US does not override their need for protection here,” the American Civil Liberties Union (ACLU) tweeted in response to the new rule. “We successfully fought President Trump on a similar ban in the courts — President Biden’s should not move forward.”
The Biden administration, meanwhile, described the policy as an opportunity to “incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings”. It also announced it would be accepting public feedback on the proposal for 30 days.
The rule signals one of the broadest attempts from the Biden administration to curtail undocumented movement across the US-Mexico border, which reached record levels in the 2022 fiscal year, with US Border Patrol documenting 2,378,944 “encounters” in the region.
Republicans have pressured Biden to crack down on illegal crossings, fearing a spike could overwhelm government resources. And in January, the administration expanded an initiative originally aimed at Venezuelan asylum seekers to include Nicaraguans, Haitians and Cubans as well.
That policy requires asylum seekers from the four countries to apply through a “parole process” that requires applicants to undergo extensive vetting. They also have to demonstrate they have a sponsor in the US who can support them financially.
Up to 30,000 applicants per month would be accepted under the programme, the Biden administration said. Individuals from those four countries who arrive “irregularly” across the US border would otherwise be subject to expulsion.
Tuesday’s newly unveiled rule would widen the number of asylum seekers who could be subject to expulsion.
In their statement on Tuesday, the DHS and DOJ said 26,000 Cubans, Nicaraguans and Haitians had been accepted through the “parole process” as of February 17. The agencies also said that, from October through January, a total of 33,800 Venezuelans had also arrived through the programme, which allows two years of work authorisation in the US.
Alejandro Mayorkas, the secretary of Homeland Security under the Biden administration, hailed the new rule as a step in favour of public safety and lawfulness.
“We are a nation of immigrants, and we are a nation of laws,” Mayorkas, who was born in Cuba, said in the statement.
“We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, [and] at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners.”
Critics, however, have slammed the plan as leaving “vulnerable people in danger” and unfairly denying “protection to thousands”.
Karen Musalo, director of the Center for Gender and Refugee Studies at the University of California, San Francisco, told the Reuters news agency the proposal would force asylum seekers to apply for refuge in the countries they travel through to get to the US.
“It’s a terrible example of trying to flout your domestic and international legal obligations,” she said.
Four Democratic senators — Ben Ray Lujan of New Mexico, Alex Padilla of California and Bob Menendez and Cory Booker of New Jersey — likewise denounced the rule in a joint statement on Tuesday, calling it a “transit ban” for asylum seekers “who don’t first apply for asylum in a transit country”.
“We are deeply disappointed that the Administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation,” the senators said. “In reality, they are pursuing a legal pathway in the United States.”
International law, incorporated into the US Refugee Act of 1980, allows asylum seekers to apply for protection upon arriving in the US on the basis that they fear persecution in their home country.
While critics have depicted the Biden administration’s new rules as an extension of Title 42 — which was enacted at the start of the COVID-19 pandemic — Biden has depicted the new immigration policies as an answer to a post-Title 42 future.
His administration sought to end Title 42 by May 2022 after US health authorities declared it was “no longer necessary”. But the policy continued, with groups like the ACLU suing to repeal Title 42 and Republican lawmakers appealing to the courts to maintain it.
In November, a judge ruled the policy was “arbitrary and capricious”, ordering the Biden administration to end it within five weeks. But as the deadline approached, the Supreme Court intervened, upholding the policy until it could hear Republican challenges to its expiration.
Last Thursday, however, the Supreme Court announced it would not hear arguments as planned on March 1. No explanation was offered and the case has yet to be dismissed.
In Tuesday’s policy proposal, the DHS said its projections indicate the US-Mexico border could see 11,000 to 13,000 illegal crossings a day if Title 42 were lifted, “absent policy changes”.