The Biden administration on Tuesday formally proposed a plan further restricting how vulnerable people can ask for U.S. asylum at our southern border. Under this so-called transit ban, asylum-seekers who travel through another country but do not ask for protection there first will be denied here. U.S. law makes no specification that asylum-seekers must arrive here in a certain way in order to ask for relief.
Officials previewed the proposal last month, becoming highly controversial not just for its harshness and questionable legal standing, but also for mirroring a Trump policy that the courts eventually blocked. In statements, organizations across the spectrum slammed the new policy as “cruel,” a “shameful assault on refugees,” and “a willful break from some of our proudest traditions as a nation.”
RELATED STORY: Advocates defeated Trump's transit ban. They're ready to fight it again, this time under Biden
“It is beyond disappointing that the Biden administration is moving forward with an anti-asylum policy that is copied from the cruel transit ban issued by the Trump administration,” Erin Argueta, senior lead attorney for the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative, said in a statement received by Daily Kos.
Not only was that iteration of the ban thrown out by the courts in 2019, it was the decision of a federal judge appointed by that administration. The rule, plaintiffs said at the time, “operated as a virtual ban on asylum at the southern border, regardless of how meritorious a person’s asylum claim was.”
The Biden administration said in its formal announcement on Tuesday that migrants who fail to seek asylum in a country they travel through—no matter how ineffectual that asylum system might be in that particular nation—“would be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet specified exceptions.”
Asylum-seekers who arrived to the U.S. but are unable to meet proposed standards set up by the federal government “will be subject to prompt removal under Title 8 authorities, which carries a five-year bar to reentry.” The proposed rule now goes to public comment for 30 days, where the public can voice its support or opposition. The rule would last for two years, but runs the risk of being extended even longer. Recall that the debunked Title 42 order, which was implemented under political pressure in March 2020, has now been in effect longer under the Biden administration than it was under the Trump administration.
Progressive, immigration, civil rights organizations and policy experts said the proposed rule should not go forward. The American Immigration Council in its statement called the proposed rule “one of the most restrictive border control measures to date under any president.”
“For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here,” said American Immigration Council executive director Jeremy Robbins. “The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.”
“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States,” Robbins continued. “Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”
National Immigrant Justice Center executive director Mary Meg McCarthy said in a statement received by Daily Kos that the proposed rule “violates U.S. obligations under international and U.S. human rights law which ensures access to protection for people fleeing persecution.” U.S. law “specifically states that the right to seek asylum is not contingent on a person’s status or the way they come to the United States,” she continued. But under the proposal, “the Biden administration is creating new requirements that will result in harm and death to people who need protection and must flee their homes quickly.”
Statements of opposition also came from Democratic lawmakers who’d already expressed deep worry following the administration’s initial preview last month. Nearly 80 federal lawmakers overall have urged officials to reverse course.
“Last month, when the Biden administration announced it would soon be issuing a proposed rule, which in effect would function as a ‘transit ban’ on asylum seekers who don’t first apply for asylum in a transit country, we urged the administration to abandon this idea,” Senators Bob Menendez Cory Booker, Ben Ray Luján, and Alex Padilla said in a statement received by Daily Kos. “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation. In reality, they are pursuing a legal pathway in the United States.”
Advocates who sued the Trump administration’s version of the transit ban and won that fight in court say they’re prepared to go back to fight this policy again.
“If the proposed asylum ban rule does what we expect it to do—unlawfully deprive access to asylum based on manner of entry and/or transit route, it would be invalid like the similar Trump administration rules that were found unlawful by federal courts,” Keren Zwick, director of litigation at the National Immigrant Justice Center, told NBC News.
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