The Biden administration stated on May 10 that it has rolled out a new regulation to coincide with the end of Title 42, under which many people who plan to illegally cross the southern border will be rendered ineligible for asylum.
Under the finalized rule (pdf), which essentially brings back a Trump-era travel policy, illegal immigrants will be disqualified from applying for asylum in the United States if they didn’t first seek protection in countries that they traveled through on their way to the United States, with limited exceptions.
It will take effect as soon as the Title 42 public health order ends on May 11, along with the national emergency declaration over the COVID-19 pandemic.
According to the Department of Homeland Security (DHS) and the Department of Justice, the regulation is meant to decrease human smuggling activities at the southern border by encouraging asylum-seekers to use “lawful, safe, and orderly” pathways, such as seeking refuge in a third country that they’ve passed through.
“This Administration has led the largest expansion of legal pathways for protection in decades, and this regulation will encourage migrants to seek access to those pathways instead of arriving unlawfully in the grip of smugglers at the southern border,” DHS Secretary Alejandro Mayorkas said.
The rule was first proposed in February and has undergone a 32-day public comment period. Its finalization comes as tens of thousands of migrants are arriving at and gathering along the Mexican side of the southern border, waiting for Title 42 to expire.
The move has triggered frustration among immigration activists, who see remarkable similarities between Biden’s rule and the Trump administration’s 2019 “third-country asylum” rule.
“The Biden administration’s pivot back to the Trumpian policies is complete,” Aaron Reichlin-Melnick, policy director at the American Immigration Council, wrote on Twitter.
“These new asylum restrictions mirrors [sic] in large part one of the Trump administration’s harshest anti-asylum policies, the 2019 asylum transit ban—which two separate federal courts struck down as unlawful.”
He pointed to court decisions that sided with the American Civil Liberties Union’s (ACLU) challenge against the Trump-era rule.
