Biden Admin Announces Policy to Restrict Asylum Claims at Southern Border as End of Section 42 Looms

The Biden administration on Tuesday unveiled a policy to restrict asylum claims at the southern border — a policy that is already vehemently opposed by Democrats and immigration activists — as it prepares to allow Section 42 expulsion to expire in a few months.

The Department of Homeland Security and the Department of Justice have announced a new proposed rule that would automatically consider migrants ineligible for asylum if they illegally crossed a U.S. border and did not apply for asylum in a country through which they had already traveled.

Unaccompanied minors will be released and there will be other factors that could invalidate the presumption, including an acute medical emergency, a victim of human trafficking, and facing an “extreme and immediate” threat to life or safety. But all others will be considered unacceptable and therefore removed.

Migrants can still enter the US to seek asylum if they have been denied in a third country, if they report to their port of entry after making an appointment through the new CBP One app, or if they are on parole in the US. They can also challenge the presumption. The policy will be temporary and will be in effect for two years.

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December 10, 2022: Aerial view of immigrants gather along the US border wall after crossing a breach in a facility from Mexico on December 10, 2021 in Yuma, Arizona.  Yuma saw a surge in migrants crossing the border last week, with many immigrants trying to reach U.S. territory before a court ruled to re-enact the Trump-era policy of staying in Mexico.  The policy requires asylum seekers to remain in Mexico during legal proceedings in U.S. immigration court.  (Photo by John Moore/Getty Images)

December 10, 2022: Aerial view of immigrants gather along the U.S. border wall after crossing a gap in a facility from Mexico on December 10, 2021 in Yuma, Arizona. Yuma saw a surge in migrants crossing the border last week, with many immigrants trying to reach U.S. territory before a court ruled to re-enact the Trump-era policy of staying in Mexico. The policy requires asylum seekers to remain in Mexico during legal proceedings in U.S. immigration court. (Photo by John Moore/Getty Images)

The rule will not go into effect immediately as there will be a public comment period and it is expected to go into effect when Section 42 expires on May 11th. The order, which has been used by both the Biden and Trump administrations to rapidly expel hundreds of thousands of migrants due to the COVID-19 pandemic, will end when the state of emergency ends.

The end of Section 42 gave rise to the specter of an even bigger surge in migration than the frontier had already seen. Earlier last year, DHS predicted that up to 14,000 migrants could meet per day after the order expires. Both Democrats and Republicans have raised concerns about the Biden administration’s plan to deal with the surge.

The policy announced Tuesday is in some ways similar to the “transit ban” that was proposed by the Trump administration and ultimately blocked by the courts. Administration officials have repeatedly dismissed comparisons to a transit ban, citing the existence and expansion of legal routes available to migrants. They argue that, unlike the Trump administration, asylum avenues remain open.

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“We are a nation of immigrants and we are a nation of laws. We are increasing the availability of legal, orderly pathways for migrants to the United States, while offering new consequences for those who do not use the processes established by the United States and its regional partners that are accessible to them,” Homeland Security Secretary Alejandro Mallorcas said in a statement.

“As we have seen over and over again, people who have a safe, orderly and legal route to the United States are less likely to risk their lives traveling thousands of miles in the hands of ruthless smugglers just to get to our southern states. border and face the legal consequences of illegal entry,” he said.

In fiscal years 21 and 22, a record number of encounters with migrants were recorded at the border. There were 251,000 migrant encounters in December and more than 156,000 in January. While those numbers are all-time highs for those months, the administration attributes the drop between months to the imposition of border measures it unveiled in January.

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This policy includes extending Section 42 to Nicaraguans, Venezuelans, Cubans, and Haitians, combined with a humanitarian parole program that allows up to 30,000 citizens of these nationalities to fly to the US each month if they meet certain conditions. Republican-led states have tried to block the program in the courts, calling it an illegal abuse of parole power. The administration also pushed Congress to pass a sweeping immigration reform bill that, among other things, would include a path to citizenship for millions of illegal immigrants.

However, this last rule is likely to be met with fierce resistance from the left, not the right. Immigration activists shuddered at the thought of any restrictions on any migrant seeking asylum, even if they have traveled through multiple countries without seeking protection, and even if they enter the US illegally between ports of entry.

The American Civil Liberties Union, which has been fighting a lawsuit seeking to strike down Section 42, has already said it intends to take legal action to strike down the new rule proposed on Tuesday.

“We will sue if this administration imposes a transit ban, just like we successfully sued over Trump’s transit ban,” said Lee Gelernt, a senior lawyer for the ACLU. said Los Angeles Times.

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Meanwhile, Democrats in the House of Representatives immediately took aim at the rule, and Democrats on the House Judiciary Committee said they were “deeply disappointed” with the rule.

“The ability to seek asylum is a fundamental principle protected by federal law and must never be violated. We must not restrict legal entry into the United States, we must expand them. Last month we saw the positive impact of new legal routes. can affect illegal migration. We hope the Biden administration will reconsider much of this proposed rule.”

Bill Melugin of Fox News contributed to this report.

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texasstandard.news contributed to this report.

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