By Eileen Sullivan and Michael D. Shear
The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald Trump.
The plan is one of several being debated by President Joe Biden’s top aides as the country confronts a high number of illegal crossings at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.
People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.
But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of U.S. and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.
And it builds on an approach embraced by Trump and Stephen Miller, the architect of the former president’s immigration agenda. Eager to keep migrants out of the United States, the Trump administration imposed what it called a transit ban and refused to consider asylum claims for migrants who had not sought refuge in other countries as they made their way to the U.S. border.
The similarities have enraged human rights advocates, who recall Biden’s full-throated condemnation of his predecessor’s immigration policies during the 2020 campaign.
“For the Biden administration to resurrect that horrific policy would be playing into Stephen Miller’s hands,” said Eleanor Acer, the director for refugee protection at Human Rights First, which issued a report in 2020 about the repercussions of the transit ban. “It’s almost like Stephen Miller is still in the White House trying to block from asylum people seeking protection from persecution.”
People familiar with the internal debate disputed that the Biden administration would embrace a policy that is the same as Trump’s programs. They also said the approach was not final and had not been presented to Biden or Alejandro N. Mayorkas, the homeland security secretary, for a decision.
One person briefed on the discussions said a new policy, if adopted, would be rolled out alongside expanded opportunities for migrants to come to the United States legally.
The person, who asked for anonymity because the closed-door discussions are continuing, said the goal of Trump’s policies was to keep people out while the Biden administration was trying to find a way to let those with valid claims in legally without overwhelming the border.
Administration officials have highlighted a recent policy that started to turn Venezuelan migrants away more quickly if they tried to cross illegally into the United States. But the policy also established a legal humanitarian pathway for 24,000 eligible Venezuelans. The combination of the two policies, officials said, has led to a significant drop in the number of Venezuelans entering the country illegally.
White House officials declined to comment specifically on the possibility of broad new restrictions on asylum. But several people familiar with the proposal said it was one of multiple ideas under consideration. Others include increasing prosecutions for people who cross illegally and expanding a practice that fast-tracks deportations for people who do not say that they fear returning to their country.
Any hint of renewing some of the Trump-era transit ban policy would be an extraordinary step for a president who campaigned to restore the asylum process that his predecessor all but dismantled.
Lee Gelernt, an American Civil Liberties Union lawyer who fought Trump’s transit ban in federal court, says that the new policy under consideration would be just as objectionable as the public health rule, known as Title 42, that has been used to keep migrants out of the country.
“If the Biden administration simply substitutes the unlawful and anti-asylum Trump transit ban for Title 42,” Gelernt said, “we will immediately sue, as we successfully did during the Trump administration.”
Many Republican candidates seized on immigration during their midterm campaigns as an issue to energize their base voters, describing the border as out of control and criticizing Biden and his administration for the sharp rise in border crossings during the past two years.
The issue failed to deliver Republicans control of the Senate, and Democratic candidates in the House did better than expected, often by focusing on the Supreme Court’s overturning of Roe v. Wade and threats to democracy from the former president.
Even so, the Republican attacks will increase in January when the GOP reclaims control of the House, particularly if there is a rush of illegal crossings after the public health rule is lifted. Last week, the top Republican in the House, Rep. Kevin McCarthy, renewed threats to impeach Mayorkas if he does not resign, because of his handling of the situation at the border.
Officials have long known that the public health order would eventually be lifted. The Department of Homeland Security had prepared a six-pillared plan as a response, and yet, the Biden administration still appears to be scrambling to come up with new policies to help manage the issue.
The department said the administration was committed to securing U.S. borders while “maintaining safe, orderly and humane processing of migrants,” even after Title 42 is lifted. “Any suggestions that U.S. policy will change are inaccurate,” said Marsha Espinosa, a department spokesperson. “No such decisions have been made.”
Immigration advocates have been disappointed with the lack of progress the White House has made in restoring the asylum system as the president pledged he would do. Administration officials note that courts have stopped some of those efforts and that Republicans have blocked Biden’s proposal — made on his first day in office — to overhaul the nation’s immigration system.