The Biden administration wants to implement new immigration regulations to replace Title 42 which would make it more difficult for thousands of immigrants crossing the border to apply for asylum in the United States. The measure states that those who cross the border irregularly and do not apply for asylum in another country lose the right to benefit from this protection in the U.S.
The proposal was created jointly by the Department of Homeland Security (DHS) and the Department of Justice (DOJ). If approved, it would be considered the Biden administration's most significant attempt to prevent illegal immigration. It would facilitate the government's ability to deport those crossing the border and seeking asylum.
Although it does not amount to a total ban on asylum, it imposes severe limitations on persons of any nationality seeking to enter the country illegally.
"A rebuttable presumption of asylum ineligibility"
The proposed rule establishes "a rebuttable presumption of asylum ineligibility" for anyone who passes through another country before arriving at the U.S. border without first seeking protection in that nation, according to a notice in the Federal Register reported by The Guardian.
Exceptions will be made only for those with an "acute medical emergency," "imminent and extreme threat" of violent crime such as murder, rape or kidnapping, being a victim of human trafficking, or "other extremely compelling circumstances." Children traveling without adults are also exempt.
The measure, which was published online, will be subject to a 30-day public comment period before it can be formally adopted. It would also be temporary and limited to a period of two years, with the possibility of extension.
A rule that aims to "fill the legal void" left behind by Title 42
Sources close to the White House told The Guardian that the regulation is intended to "fill the legal void" that will arise after the potential end of Title 42. Congress has taken "no action to ensure the safe and humane management of migrants." They will not allow, "massive chaos and disorder at the border due to the inaction of Congress."
Although the sources did not explain when the regulation will be applied or what will happen if Title 42 is extended again, they did point out that they intend for it to come into effect when Title 42 is eliminated and not before.
The sources also claimed that the rule is likely to face legal challenges. They explained that Donald Trump sought to enforce a similar ban in 2019, but a federal appeals court prevented it from taking effect.
Criticism of the measure
The American Civil Liberties Union (ACLU) vowed to fight the Biden administration in court and compared the measure to Trump's restriction, which activists called a "transit ban." ACLU attorney Lee Gelernt noted:
We successfully sued to block the Trump transit ban and will sue again if the Biden administration goes through with its plan.
Our courts have long recognized that a person’s decision not to seek asylum while in transit to the US does not override their need for protection here.
We successfully fought President Trump on a similar ban in the courts — President Biden’s should not move forward.
— ACLU (@ACLU) February 21, 2023
The DHS and DOJ argued that the growing number of immigrants left them with few options. They anticipate that illegal crossings will increase to between 11,000 and 13,000 people per day if no action is taken after Title 42 ends:
Without a meaningful policy change, border encounters could rise, and potentially rise dramatically [after the lifting of Title 42].
Southern Border: new regulations on illegal entry and asylum applications
In Voz Media, attorney María Herrera Mellado commented on the main differences and similarities of this regulation "to the one adopted by Donald Trump during his presidential term". (Spanish audio).
For any questions or doubts, at your disposal: [email protected].
