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Biden administration will block migrants with rule that critics say resembles Trump-era 'transit ban'

The Covid ban known as Title 42, which has blocked more than 2 million border crossings, will likely expire in May, and the new policy is meant to last for two years after Title 42 ends.
President Joe Biden speaks with Customs and Border Protection officers in El Paso, Texas, on Jan. 8, 2023.
President Joe Biden speaks with Customs and Border Protection officers in El Paso, Texas, on Jan. 8.Jim Watson / AFP via Getty Images file

The Biden administration announced Tuesday a new policy, set to take effect when Covid measures at the southern border expire, that would place limits on migrants’ eligibility to claim asylum when crossing into the U.S. from Mexico.

The policy has received wide criticism from congressional Democrats and immigrant advocacy organizations who liken it to a “transit ban” proposed by President Donald Trump’s hard-line immigration adviser, Stephen Miller. Advocacy organizations have threatened to sue.

Under the new rule, migrants who pass through countries on their way to the U.S. and do not first claim asylum there or take advantage of other lawful pathways will be deemed ineligible to claim asylum at the southern border.

Department of Homeland Security officials have widely predicted that the nation’s immigration system will be overwhelmed when the U.S. lifts Covid restrictions known as Title 42 that have blocked more than 2 million asylum-seekers since March 2020. Barring any successful court challenges, Title 42 will expire in May, and the new policy is meant to last for two years after Title 42 ends, according to a news release from the departments of Homeland Security and Justice.

“This was not our first preference or even our second,” an administration official told reporters on a call Tuesday, adding that the Biden administration would rather Congress take action on immigration reform legislation.

“[Immigrants] will continue to have accessible and convenient ways to apply [for asylum in the U.S.],” the official said.

As announced on Jan. 5, migrants from Haiti, Cuba, Nicaragua and Venezuela will be able to apply to come to the U.S. if they can show they have a U.S.-based sponsor to support them. Migrants from other countries can apply for appointments with Customs and Border Protection at ports of entry, per previous policy. But administration officials could not tell reporters on the call Tuesday how many migrants might be able to access those appointments. 

Advocates and lawyers working with asylum-seekers in Central America and those waiting in camps in northern Mexico have reported that the app for scheduling appointments often does not work and is inaccessible for many migrants. 

“CBP continues to build upon the capabilities of the app,” the administration official said. 

The Biden administration has repeatedly denied that the new policy is a re-creation of the Trump-era transit ban. 

“As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry,” Secretary of Homeland Security Alejandro Mayorkas said.

Immigrant rights groups were quick to respond to the announcement of the new policy.

“President Biden ran for and won the presidency by pledging to turn the page on the cruelty and chaos of the Trump era and ‘restore the soul of America,’” said Douglas Rivlin, director of communications for America’s Voice, a group that advocates for immigration reform and immigrants. “It’s hard to reconcile those promises with the details of the proposed asylum ban announced today. It’s a policy eerily reminiscent of the Trump/Stephen Miller approach and a willful break from some of our proudest traditions as a nation.”