Two Texas National Guard soldiers work an observation post in Hidalgo County near the state’s border with Mexico as part of Operation Lone Star on Jan. 21, 2022. T

Two Texas National Guard soldiers work an observation post in Hidalgo County near the state’s border with Mexico as part of Operation Lone Star on Jan. 21, 2022. T (Rose L. Thayer/Stars and Stripes)

WASHINGTON — The Biden administration on Tuesday announced its most restrictive border control measures to date, issuing plans for a temporary rule that will penalize asylum seekers who cross the border illegally or fail to apply for protection in other nations they transit on their way to the United States.

Under U.S. immigration law, migrants fleeing persecution can request asylum regardless of how they arrive on U.S. soil. Biden’s rule, which could become active in May and expire after two years, would presume asylum ineligibility for those who enter illegally. The penalty would make it easier for the government to deport border-crossers who express a fear of harm, potentially reducing the number who are allowed into the United States pending a hearing in swamped U.S. immigration courts.

The policy announcement, made jointly by the Departments of Homeland Security and Justice, is the latest administration move aimed at shoring up a potential vulnerability for Biden if he runs for reelection next year. After taking office, Biden reversed and eliminated many of the Trump administration’s exclusionary immigration measures, but the president’s pledges to created a more orderly system have been undercut by frequent scenes of border chaos and record numbers of illegal crossings.

Also looming is the expiration of the pandemic public health emergency, set by the White House for May 11. That will lift the emergency border restrictions that have allowed authorities to rapidly expel more than 2 million migrants, including asylum seekers, since March 2020. The proposed rule would give the administration an enforcement tool to confront another potential migrant surge.

Biden’s asylum rule, according to the proposal, will “encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain.”

Asylum seekers would be able to overcome the rule’s rebuttable presumption of ineligibility by showing they were denied safe refuge in Mexico or another nation through which they traveled before reaching U.S. territory, officials said.

Administration officials said Tuesday the proposal will be subject to a 30-day public comment period and is likely to take effect before the May 11 expiration of the pandemic-era public health restrictions known as Title 42. Authorities are bracing for a new surge of migrants when the health restrictions end “to a level that risks undermining the Departments’ continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances,” the proposal states.

Tuesday’s announcement carries significant political risks for the president, as the proposal’s broad outlines have been denounced by migrant advocates who are a core part of the Democratic Party base. The administration is already trying to fend off multiple federal lawsuits filed by Republican state officials trying to keep Trump-era measures in place, so the proposed asylum restrictions could leave Biden battling litigants on both ends of the political spectrum.

Krish O’Mara Vignarajah, the president of the Lutheran Immigration and Refugee Service, said the proposed rule resurrects “one of the most harmful and illegal anti-asylum policies of the Trump administration.”

“It defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum,” she said. “Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.”

The current U.S. asylum system was set up in the aftermath of World War II and the Holocaust, with safeguards established to make sure the government would not deport migrants back to nations where they could be killed or persecuted on the basis of race, religion, political beliefs or membership in particular social groups.

In recent years, authorities have seen soaring numbers of migrants crossing the southern border illegally and stating a fear of harm, effectively halting their deportation. To ensure due process, many are released into the United States with court appointments. But those migrants may never complete the application process after their release, and with more than 1.5 million cases pending in U.S. immigration courts, it can take years before their persecution claims are adjudicated.

DHS statistics show those who drop out of the process to remain in the United States illegally face a low risk of deportation, creating what critics see as a worsening loophole undermining effective enforcement.

The Trump administration tried to crack down with a ban on asylum seekers who declined to seek protection in Mexico or other nations they transited en route to the United States. Those measures were blocked in federal court.

Critics of Biden’s proposal have likened it to the Trump approach, but administration officials insist that the comparison is unfair and that their new rule does not amount to a “ban.” They say that they are asking asylum seekers to schedule appointments at official U.S. border crossings instead of hiring smugglers and crossing illegally, and that they are simultaneously expanding other opportunities for migrants to enter the United States lawfully.

Administration officials are anticipating harsh criticism from Democratic lawmakers and others who say the policy risks sending migrants back to grave danger. But Biden officials say the move is the unpalatable result of lawmakers’ inability to pass comprehensive reform that would address glaring problems with the U.S. asylum system.

“This administration will not allow mass chaos and disorder at the border because of Congress’s failure to act,” said an administration official, who spoke on the condition of anonymity to describe the proposal before its publication.

“Even though these temporary measures are being taken out of necessity, they continue to hold true to this administration’s Day One principles of expanding legal pathways, limiting unlawful migration, and increasing border security,” the official said.

On Jan. 5, the administration announced a deal with Mexico allowing authorities to send back across the border up to 30,000 migrants per month who have come from Cuba, Haiti, Nicaragua and Venezuela if they cross illegally. At the same time, the administration is using an executive authority known as “parole” to allow 30,000 monthly from the four nations to enter the United States legally if they have U.S. sponsors and apply via a mobile app.

In the weeks that followed the Jan. 5 announcement, illegal crossings by migrants from Cuba, Haiti, Nicaragua and Venezuela dropped 97 percent, according to government data. Officials said they think the new asylum policy could have a similar deterrent effect.

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