White House Revives Trump-Era Policy, Limits Asylum Eligibility Ahead of Title 42 Expiration

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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 didnโ€™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 โ€œlawful, safe, and orderlyโ€ pathways, such as seeking refuge in a third country that theyโ€™ve passed through.

โ€œThis 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,โ€ 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 Bidenโ€™s rule and the Trump administrationโ€™s 2019 โ€œthird-country asylumโ€ rule.

โ€œThe Biden administrationโ€™s pivot back to the Trumpian policies is complete,โ€ Aaron Reichlin-Melnick, policy director at the American Immigration Council, wrote on Twitter.

โ€œThese new asylum restrictions mirrors [sic] in large part one of the Trump administrationโ€™s harshest anti-asylum policies, the 2019 asylum transit banโ€”which two separate federal courts struck down as unlawful.โ€

He pointed toย court decisionsย that sided with the American Civil Liberties Unionโ€™s (ACLU) challenge against the Trump-era rule.

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