Advocates say Biden's asylum rule is a Trump deja vu

The Biden administration is barreling towards a legal fight with immigration groups after rolling out a new asylum policy similar to a Trump-era directive already struck down by the courts. 

The tussle between the administration and its would-be allies on immigration has been brewing for years, but it hit a head Tuesday, when the administration unveiled a proposed rule taking two big hits at the asylum system.

The proposal from the Department of Homeland Security (DHS) and the Department of Justice (DOJ) seeks to geographically contain asylum-seekers by pushing them to pursue protection in another country along their journey.

It also restricts where those who arrive at the U.S. border can make the claim — barring the process for those crossing between ports while also imposing new limitations for those who present themselves at official points of entry. 

The administration contends that the changes to the policies, along with the rollout of a new program for those who secure sponsors to come to the U.S., are a legal and necessary approach as it prepares to lift ongoing pandemic-era restrictions at the border. 

But to immigration advocates, it's a mashup of two policies from the administration of former President Trump that they successfully challenged in court, and that, even with tweaks, contravene U.S. protections for asylum-seekers.

“We do not think that this proposed rule is lawful. The changes that were made are largely cosmetic,” said Lee Gelernt, an attorney with the American Civil Liberties Union who led arguments in a case that toppled similar Trump administration policies.

“The additional requirements suggested by the proposed rule would not be consistent with our domestic or international asylum laws. So if this rule is enacted, we will be back in court,” Gelernt said.

The two sides' fundamental disagreement lies in their view of the asylum system's role in the global mass migration phenomenon.

Advocates and many Democrats view asylum as a legitimate tool for migrants to seek refuge in the United States, whether or not they fit the traditional definition of asylum-seekers and refugees. 

"There are any number of reasons that people fleeing violence, persecution, and other situations may not be able to avail themselves of other options," Congressional Hispanic Caucus Chairwoman Rep. Nanette Diaz Barragán (D-Calif.) said in a statement. 

"To punish them for not being able to apply for asylum via an app or not being able to first exhaust a claim in a third country is wrong," she added. "It goes against our values as a country and against the spirit of our asylum laws."

Biden officials want to reduce the number of people who use asylum as a pathway to enter the U.S., though the administration's immediate concern is to reduce foot traffic at the border, both for political and logistical reasons.

They are bracing for the end to Title 42, a law that uses public health as ground for allowing the swift removal of migrants without letting them seek asylum, something the Trump administration first rolled out shortly after the start of the COVID-19 pandemic.

Administration officials say the number of those seeking to cross the border could reach 13,000 a day once the policy is lifted in May. 

Administration officials also say the asylum reforms will help combat human smuggling, which has thrived under the existing system.

Advocates contend that restrictions create black markets and point to programs such as the administration’s parole program as better ways to starve the illicit industry of clientele.

"This ban — a policy already deemed illegal by our courts — will not deter people who are seeking asylum from coming to the U.S. Instead, it will strip the most vulnerable individuals and families of their rights under U.S. and international law by permitting their rapid return to the danger they are running from," said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights.

"Alternatively, migrants would need to resort to the very smugglers the administration flags as a concern. This, and so much of the justification in this proposed policy, read like an upside-down version of asylum law," Salas added.

Administration officials, like many of their predecessors, are quick to blame congressional inaction on immigration for the lack of good options, offering a lukewarm defense when announcing the rule Tuesday.

“To be clear, this was not our first preference or even our second,” a senior administration official told reporters.

But the executive branch and immigration advocates outside it prioritize different aspects of asylum law. The administration seeks to process claimants with a strong case to ultimately win asylum; advocates defend the fundamental right to seek asylum, regardless of the strength of the claim.

Though the policy includes some provisions that water down the rule when compared to Trump-era versions, advocates say it would still violate two fundamental provisions of asylum law that helped them win their first suit.

“The basic, fundamental tenet of asylum law is if you get to safe territory, no matter how you get there — documents, no documents; between ports or at a port — you must be given a screening for asylum. And so the Biden administration is disfavoring people who cross between ports, but that law Congress passed does not allow that,” Gelernt said.

And Gelernt said the law also specifically addresses the latest effort to make asylum-seekers first apply elsewhere.

“Congress envisioned this situation and said, ‘You have to have a formal agreement with that third country, and you have to have assurances that that third country can actually provide safe and full asylum hearings,’” he added. 

The new asylum restrictions are designed to channel different groups of migrants into distinct paths to request entry into the United States.

The Biden administration has rolled out a new parole program for Haitian, Cuban, Nicaraguan and Venezuelan nationals, who, if they can secure a financial sponsor, can pursue permission to enter the U.S for two years by first applying through the CBP One app.

But the new proposal would mean those who cannot secure a sponsor — as well as asylum-seekers from any other country — are directed to request asylum in another country they passed through on their way to the United States. It’s a provision that harkens back to the so-called transit ban first rolled out under the Trump administration.

Under former President Trump, immigration advocates were able to successfully challenge this in part by highlighting the limitations on asylum systems in Central America, noting at the time that Guatemala had just a handful of asylum officers for the whole country.

The policy would largely block those who don’t first seek asylum elsewhere from making such claims in the U.S. But even so, those who do arrive would be expected to seek an appointment at the border through the CBP One app, which has been plagued with tech difficulties and is a barrier for those who may struggle to secure internet access.

Even so, it’s not clear that all who apply will be able to secure a time slot, and those who show up without an appointment will be presumed to be ineligible for asylum.

“You can have two people arrive at a port of entry with the exact same asylum claim, but one person has a pre-arranged appointment via the CBP One app, and the other person does not. And the person that doesn't have that pre-arranged appointment via the app will be held to a higher standard to prove their asylum claim with some narrow exceptions,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Counsel. “So we're really relying on technology to put people into different buckets to determine what standard and what process is going to apply to them.”

Gelernt said the administration’s suggestion that the proposal is designed to stem irregular crossings isn’t showing the full impact if the rule were to take place.

“The administration is trying to suggest that this new rule would apply only to people who cross between ports of entry. That’s not true,” he said.

“Because if you show up at a port of entry, and you don't have an appointment from the app, and you didn't apply in a third country, you're going to be turned away."