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Rights groups threaten to sue Biden administration over plan to block migrants with what groups call a Trump-era tactic

Four senior DHS officials tell NBC News the new policy will not expand legal paths and will largely block migrants from Central America from trying to claim asylum at the border.
President Joe Biden speaks with US Customs and Border Protection officers as he visits the U.S.-Mexico border in El Paso, Texas, on Jan. 8, 2023.
President Joe Biden speaks with U.S. Customs and Border Protection officers as he visits the U.S.-Mexico border in El Paso, Texas, on Jan. 8.Jim Watson / AFP via Getty Images file

The Biden administration is finalizing a new immigration rule to block migrants that many rights groups compare to a Trump-era restriction, and some of those groups are preparing to sue the administration to stop it.

The new rule, expected to be announced in the coming weeks according to four senior DHS officials, would make migrants crossing the southern border ineligible for asylum in the U.S. if they did not first attempt to claim asylum in a country they passed through, such as Mexico. The administration has contended with historically high levels of attempted border crossings during the past year, and the move could potentially keep hundreds of thousands of migrants from seeking asylum in the U.S., though some other legal pathways for some migrants have been opened. 

Immigration advocates and some Democrats have criticized the administration for considering the policy, saying it is similar to the so-called transit ban that was proposed by immigration hard-liner Stephen Miller, a senior adviser to President Donald Trump, but halted in the courts. 

President Donald Trump signs an executive order in the Oval Office of the White House on Jan. 23, 2017.
Then-President Donald Trump signs an executive order in the Oval Office of the White House on Jan. 23, 2017.Evan Vucci / AP file

Keren Zwick, director of litigation at the National Immigrant Justice Center, said that her group and partner organizations plan to work together again to fight any such rule, just as they fought the Miller version, and predicted that once again the rule would not survive their legal challenge.

“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,” Zwick said, “it would be invalid like the similar Trump administration rules that were found unlawful by federal courts.”

Homeland Security Secretary Alejandro Mayorkas has denied that the Biden rule is a revival of Miller’s proposal.

“This is not a Trump era-policy,” Mayorkas said on MSNBC on Jan. 31. “This is not a transit ban. We have provided a lawful path for individuals to try to seek entry.”

The lawful path Mayorkas referred to is a policy announced Jan. 5 that allows up to 30,000 migrants from Venezuela, Haiti, Nicaragua and Cuba per month to apply to come to the U.S. if they have a U.S.-based sponsor. It also allows for particularly vulnerable migrants from any country to apply for an exception to Title 42, the Covid rule still blocking many migrants from passing. 

But the four DHS officials tell NBC News that the new policy will not expand upon those legal pathways and will largely block migrants from Central America from attempting to claim asylum at the southern border. 

The Biden administration is already facing a legal challenge in federal court from Republican-led states against its expansion of legal pathways for some migrants. The prospect of a legal challenge from immigrant rights groups when the new policy restricting asylum is announced shows the difficulty of making border policies in a political environment when immigration is such a sharply polarizing issue.

A change in direction

Democrats and immigrant rights groups first applauded President Joe Biden’s commitment to restoring humane immigration policies after the Trump administration, an era that included separating thousands of migrant parents from their children as they crossed the southern border in 2017 and 2018. 

But border crossings during the Biden administration have hit 20-year highs, and while they have dropped recently, the possible end of Title 42 in May is expected to lead to a new spike in border numbers.

As the Biden administration searches for ways to stem the flow, more than 75 Democrats in Congress are sharply criticizing the new direction the Biden administration is taking.

The DHS officials tell NBC News the policy is expected to be announced within weeks and that Border Patrol stations are busy expanding their number of phone booths, expected to be used to quickly determine if migrants may be allowed to apply for asylum through remote interviews with asylum officers. If they are not allowed to seek asylum or do not qualify for other protections, including those reserved for victims or potential victims of torture, the new policy will expel or quickly deport migrants straight from Border Patrol custody, the officials say.

How many are allowed to be turned back into Mexico, however, will depend in large part on ongoing conversations between the U.S. and Mexico that will determine how many migrants and from which countries Mexico will accept, the officials said.