In a bid to prevent a surge of migrants at the southern border when a pandemic measure is lifted in May, the Biden administration on Tuesday announced its toughest policy yet to crack down on unlawful entries.
The proposed rule, which has been opened for 30 days of public comment before taking effect, would presume that migrants are ineligible for asylum if they entered the country unlawfully, a significant rollback in the country’s traditional policy toward those fleeing persecution in other countries.
It would allow rapid deportation of anyone who had failed to request protection from another country while en route to the United States or who did not notify border authorities through a mobile app of their plans to seek asylum.
Administration officials said the policy would take effect on May 11 with the expected termination that day of Title 42, a Trump-era health emergency rule that has allowed border authorities to swiftly expel migrants back to Mexico. The new rule would then remain in place for two years.
President Biden took office vowing to restore a humane approach to the border crisis after his predecessor, former President Donald J. Trump, introduced a series of harsh immigration policies, including the separation of migrant children from their parents. But as the Biden administration has struggled to quell a surge of migrants fleeing economic ruin in their countries, including Cuba, Haiti, Nicaragua and Venezuela, it has turned to more restrictive measures.
The decision, announced jointly by the Homeland Security and Justice Departments, was sharply rebuked by human rights advocates who said the policy mirrored an earlier, much-criticized restriction under Mr. Trump that denied asylum to most migrants who had not first applied for it in Mexico or another country along their way. That policy had been struck down by several federal courts.
Many migrants do not apply for asylum in Mexico, preferring to try their luck in the United States. The new policy was expected to erect a formidable barrier to those hoping to submit U.S. applications.
More on U.S. Immigration
- A Political Showdown: Alejandro N. Mayorkas, the homeland security secretary, has become the face of the border crisis, particularly for Republicans who see immigration attacks as a winning political strategy.
- Title 42: The Supreme Court canceled arguments in a challenge to ending the pandemic-era measure, a step that suggested it may dismiss the case based on the Biden administration’s announcement that the health emergency would end in May.
- New Funding: Vice President Kamala Harris announced almost $1 billion in new pledges by private companies to support communities in Central America, part of the Biden administration’s effort to keep migrants from fleeing toward the U.S. border.
- Jobs: The flow of immigrants and refugees into the United States has ramped up, helping to replenish the American labor force. But visa backlogs are still posing challenges.
“The Biden administration’s proposed rule would send asylum seekers back to danger, separate families, and cost lives, as human rights advocates have been asserting for weeks,” said Jane Bentrott, counsel at Justice Action Center, an immigrant rights nonprofit.
“It is in direct contravention of President Biden’s campaign promises to reverse Trump’s racist, xenophobic immigration policies, and give all folks seeking safety a fair shot at asylum,” she said.
On a call with reporters, administration officials said that failure by Congress to pass an overhaul of the nation’s outdated immigration laws and a spate of lawsuits from Republican-led states had prevented the government from effectively managing the southern border. The lifting of Title 42 in May could lead to large crowds attempting to cross the border, they said.
The regulation is designed “to help ensure secure, orderly, and humane processing of migrants once Title 42 eventually lifts,” said one official on the call, whose organizers spoke on the condition that they not be identified.
The officials said that the “new standards” were intended to discourage people without a legitimate need for U.S. protection from coming to the border while allowing others to seek asylum “outside the United States or in a country they are transiting through,” one official said.
The demographics of border crossings have shifted in recent years with the arrival of ever-greater numbers of non-Mexicans who are far more likely to make asylum claims. Because it can take years to process and deport those ultimately found ineligible to receive U.S. protection, applicants have been allowed to remain in the country and receive employment authorization, a situation that incentivizes even more people to come.
Border authorities last year registered more than 2 million encounters with migrants, a record number. Many of those they intercepted were repeat crossers, who had already been expelled under Title 42. And chaotic scenes of migrants wading across the Rio Grande in Texas prompted fierce criticism from Republican governors, who said the Biden administration had lost control of the border.
The administration’s plan to eliminate Title 42 drew legal challenges from Republican-led states that argued its demise would cause a spike in crossings and mayhem in border communities.
In the meantime, the government has increasingly made use of the emergency health policy to contain the recent influx of migrants.
While still pledging to end the measure, the administration extended it to cover migrants from more countries. In early January, it unveiled a plan to use it to turn back a new flood of crossers from Cuba, Haiti, Nicaragua and Venezuela, while simultaneously establishing a program that enabled nationals of those countries to apply for parole to enter the United States from their countries of origin if they had a financial sponsor.
Since that program’s inception, overall unlawful crossings have plummeted by 97 percent. On the call with reporters on Tuesday, administration officials said that the decline proved that pairing a humanitarian program with punitive measures that have consequences for illegal crossers was effective.
In its proposed rule, the administration said that projections suggested that lifting Title 42 could lead to an increase in border crossings to 13,000 encounters per day, from last year’s high of about 7,000 per day, absent policy changes and a mechanism to quickly remove those who arrive without authorization.
It cited the growing impact of climate change on migration, political instability in several countries, the evolving recovery from the pandemic, and uncertainty generated by border-related litigation among factors that are pushing migrants to try to cross into the United States.
Under the proposed rule, asylum seekers who arrive at an official port of entry and claim asylum would be allowed to enter if they met the initial criteria and used a mobile app, known as CBP One, to schedule an appointment with U.S. authorities to review their application. But those who cross illegally between ports of entry, if caught, would have to prove that they were denied safe haven while in transit to the United States, such as from Guatemala or Mexico, to be allowed in.
The mobile app, intended to provide an orderly, streamlined system of processing asylum seekers, has been in use since January, but the system has been overloaded by huge demand and plagued with glitches since tens of thousands of migrants staying in shelters on the Mexican side of the border began using it.
Migrants have been rising before dawn to go online, hoping to maximize their chances of securing an appointment through the app. The vast majority fail to get a spot in the virtual queue that opens at 6 a.m. and offers appointments for exactly two weeks later, several immigrant advocates said.
At a shelter in Tijuana, across from San Diego, 150 families recently tried unsuccessfully to make an appointment, said Lindsay Toczylowski, an immigration lawyer who was on site.
“With lives on the line, they got pop-ups,” said Ms. Toczylowski. Screenshots reviewed by The New York Times read, “Time Slot Full,” “System Error,” or “Unable to Verify Location,” even though the migrants were on the border where applicants must be to apply. The messages appeared over and over again, she said.
At another shelter the lawyer visited, only two out of 240 people had managed to secure an appointment when they tried early that morning.
“It’s almost like a lottery,” said Ms. Toczylowski, executive director of Immigrant Defenders Law Center, a nonprofit law firm in California that serves asylum seekers. “You have to win a ticket to be able to seek protection in the U.S.”