New Biden policy limits asylum access at the southern border

Migrants wait to be processed by Border Patrol agents after crossing from Mexico on Dec. 17 in Yuma, Ariz.
(Don Bartletti/For The Times)

The Biden administration announced a policy Tuesday that would limit asylum access for immigrants who cross into the U.S. without authorization and fail to apply for protections on the way to the southern border with Mexico.

The proposal will not take effect immediately and will go through a regulatory process to allow public comment for 30 days. After that time, the policy is set to be in place for two years following its effective date.

It is the latest Biden administration proposal to deter migrants from entering the U.S. without authorization and to bring down the numbers of migrants crossing the southern border. The policy is being unveiled as the administration prepares for the expected end in May of Title 42, a Trump-era policy that allows border agents to quickly turn back migrants.


“We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, 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,” Department of Homeland Security Secretary Alejandro N. Mayorkas said in a statement.

The government had struggled to lower the number of crossings at the border before it decided to expand its use of Title 42 in January to expel Nicaraguans, Haitians, Venezuelans and Cubans to Mexico. At the same time, the Department of Homeland Security allowed immigrants from those countries who had verified sponsors in the U.S. to enter the country legally. After the announcement, the numbers of unauthorized border crossings went down in January to their lowest levels in almost two years.

Since Biden administration officials hinted at the effort in January, advocates have criticized the idea, saying it mirrors former President Trump’s move to block asylum for those who crossed into the U.S. without authorization and did not seek protections in another country on their journey. That proposal was blocked in federal court.

“We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban,” said Lee Gelernt, a senior attorney with the American Civil Liberties Union.

On Tuesday, immigrant advocates were critical of the proposal and condemned the intentions of the administration.

“We are deeply disappointed to see the Biden administration announce what is effectively a ban on asylum,” Sergio Gonzales, executive director of the Immigration Hub, an advocacy organization, said in a statement. Gonzales previously served on the Biden administration’s transition team.


“Asylum decisions are a matter of life and death. Denying people a fair chance to seek safety and freedom under U.S. law flies in the face of America’s moral leadership on the protection of refugees and President Biden’s campaign promise to rebuild a fair, humane and orderly immigration system,” he said.

Laurie Ball Cooper, legal services director for the International Refugee Assistance Project, said in a statement that the move was “unconscionable.”

“This asylum ban was illegal when the Trump administration proposed it and it is illegal now. President Biden should restore full access to the asylum system immediately,” she said.

Chris Magnus, a former Biden administration official who led U.S. Customs and Border Protection before being forced to resign, said the new effort was confusing.

“I’m trying to understand how we can authentically commit to our asylum laws and values, but then propose policies so inconsistent with those values,” he said.

Biden administration officials, however, have said the new policy is not comparable to Trump’s because it would not categorically ban asylum and offers a way to gain asylum access at a port of entry.


“This administration just won’t allow mass chaos and disorder at the border because of Congress’ failure to act,” an administration official said on a call with reporters Tuesday.

“To be clear: This was not our first preference, or even our second. From Day One, President Biden has urged Congress to pass the comprehensive immigration reform and border security measures to ensure orderly, safe and humane processing of migrants at our border,” the official later added.

Under the proposal, immigrants who cross the southern border without authorization after traveling through a third country and have not been denied asylum in a country on their way to the U.S. would be forced to overcome a presumption that they are ineligible for asylum.

Immigrants unable to overcome that hurdle would be liable to deportation unless they meet one of several exceptions included in the policy, or clear a higher bar for protection in the U.S. Asylum officers are expected to interview immigrants crossing the border.

Exceptions include a medical emergency, an imminent threat to life or victimization from a severe form of trafficking.

Homeland Security officials want migrants to schedule appointments with border officials at a port of entry or seek another legal pathway, such as programs that allow migrants to enter the country with a sponsor. The new policy does not apply to those who enter through these means.


A record number of migrants descended on the southern border last year, putting political pressure on the Biden administration. Border agents made more than 2 million arrests at the border during the year ended Sept. 30, according to Customs and Border Protection data. Republicans have argued those numbers prove Biden is weak on border security.

Biden has sought to end Title 42 but has faced legal challenges from officials in Republican-led states who argue that ending it would result in a surge of migrants to the U.S.-Mexico border. The Supreme Court ordered the administration to keep the policy in place until it rules on the states’ lawsuit.

The administration, however, plans to allow the public health emergency for COVID-19 that underlies Title 42 to expire on May 11. After that announcement, the Supreme Court took arguments scheduled in the case off its docket.

Despite the administration’s effort to end Title 42, in recent months officials have expanded its use by turning back Venezuelans, Cubans, Nicaraguans and Haitians to Mexico under the policy, limiting the ability of thousands to seek asylum. Mexico has agreed to allow U.S. officials to return up to 30,000 migrants per month.

Before January, Venezuelan and Cuban migrants for the most part had been able to seek asylum after crossing the border. The U.S. had been unable to deport migrants at high levels from those countries as well as Nicaragua because of strained relations with their governments.

The Biden administration has contended that it is dealing with high levels of migration in the region.


“Economic and political instability around the world is fueling the highest levels of migration since World War II, including in the Western Hemisphere,” the asylum proposal states.