El Paso, Texas — The Biden administration has finalized a rational cap on asylum that it plans to use to quickly deport migrants crossing the U.S.-Mexico border after the Title 42 pandemic emergency policy measures on Thursday, according to internal documents obtained by CBS News.
On Tuesday, hundreds of U.S. asylum officials were trained on how to enforce the restrictions, and the regulations are expected to be released on Wednesday, less than 48 hours before Section 42 expires, according to people familiar with the effort, who wished to remain anonymous to discuss internal plans.
The provision, which is expected to be challenged in federal court, would be a dramatic shift in asylum policy, denying migrants the right to U.S. protection unless they seek refugee status in another country, such as Mexico, en route to the southern border.
The rule is also a major U-turn for President Biden, a Democrat who has advocated for reopening the US asylum system after numerous Trump administration regulations made it harder for migrants to seek asylum on American soil. In fact, the regulation to be released on Wednesday resembles a Trump-era policy overturned in federal court that Mr. Biden condemned in 2020.
If confirmed, the Biden administration’s rule would cement growing bipartisan opposition to the asylum laws, which Congress passed in 1980 under international treaties designed to prevent countries from turning away refugees where they could be persecuted, as the US has done with some Jews escaped from Nazi Germany.
That shift has intensified recently as historically high levels of migrant arrivals have further strained a lagging asylum system, overwhelmed border communities and created a political liability for Mr. Biden ahead of his re-election bid.
Under this rule, migrants who cross the southern border without authorization will be considered ineligible for asylum unless they can prove that they have previously sought protection in a third country. In practice, this would disqualify most non-Mexican migrants who enter the US between points of entry from asylum.
Migrants who have made an appointment to enter the United States under the mobile application system will not be barred from granting asylum under the policy. The rule will also not apply to unaccompanied minors.
According to internal training documents, only migrants with “exceptionally compelling circumstances” will be able to clear the bar for asylum under the rules. These include migrants with a “medical emergency,” those facing an “imminent and extreme threat” in Mexico, and victims of “severe forms of human trafficking.”
In order to avoid deportation and removal from the U.S. for five years, those who do not qualify for the exemption will have to pass an interview with heightened standards that lead to more rejections than traditional “credible fear” interviews, according to teaching materials.
The restriction is the centerpiece of the Biden administration’s attempt to blunt a potentially historic increase in the number of migrants crossing the US-Mexico border when Title 42 deportations are halted at midnight Thursday. The number of unauthorized border arrivals has already risen, with the Border Patrol apprehending an average of more than 8,700 migrants a day over three days last week, up from an average of 5,200 in March.
While Section 42 allowed US Border Patrol to cite public health concerns to deport hundreds of thousands of migrants without considering their asylum claims, the new rule is in many ways a tougher policy. Because migrants deported under Section 42 did not face immigration or criminal charges, the measure encouraged some to try to cross the border again.
But those who fail to prove they qualify for an exception to the rule finalized this week face immediate deportation to Mexico or their home country, as well as five years of banishment from the U.S. under a process known as expedited removal. The Biden administration has warned that if they try to re-enter the US after being deported, they could face prosecution and jail time.
Biden administration officials said limiting asylum was not their first or second “priority,” but justified the move by citing record levels of migrant apprehensions reported by U.S. border agents over the past two years. The administration said that without the rule, the number of migrants crossing the southern border each day could soar to 13,000 after Title 42 expires.
The administration also says the rule will encourage migrants to enter the country legally, including through a phone app which allows asylum seekers in Mexico to seek entry to the U.S., and a sponsorship initiative allows to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans with American sponsors fly to the US every month.
While the partial asylum ban has won support from some centrist Democrats, it has been strongly rejected by Biden supporters, progressives and former officials, who say the policy ignores US asylum law, which gives migrants on American soil the right to seek asylum. regardless of how they entered the country.
“For a Democratic president to impose a new ban on asylum seekers is a major shift,” said Andrea Flores, who served as a White House border official during the first year of the Biden administration. “This is evidence that the past decade of far-right attacks on black and brown asylum seekers has significantly weakened the Democratic Party’s commitment to providing asylum to people fleeing persecution and torture.”
The American Civil Liberties Union, which persuaded federal courts to block the Trump administration’s “transit ban” on asylum, has also vowed to file a lawsuit against the Biden administration’s rule.
“We’re going to sue, just like we did under Trump,” Lee Gelernt, the ACLU’s top immigration lawyer, told CBS News on Tuesday. “The basic illegality is the same.”
During one of the 2020 presidential debates, Mr Biden blasted former President Donald Trump for being “the first president in the history of the United States” to say that “anyone who seeks asylum should do so in another country”.
But shortly after Mr. Biden took office, his administration considered doing just that amid rising border crossings. The regulation, however, was rejected in 2021 amid opposition from some appointees and a determination by the White House counsel that the measure could be overturned in court.
The Biden administration has strongly denied that the ruling finalized this week is similar to the Trump-era asylum ban, arguing that its approach is different because its cap has broader exceptions and is coupled with expanded channels for migrants to enter the U.S. with legal permission.