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Biden plan would ban asylum for most immigrants who didn’t seek protection before entering the U.S.

Migrants, mainly from Cuba, occupy the Mexican side of the Paso del Norte border bridge, where a plaque marks the border line. It is dark outside. They are wearing face masks as they protest to be allowed into the U.S. to apply for asylum in Ciudad Juarez, Mexico, just before midnight on Dec. 29, 2020.
Christian Chavez
Migrants in Ciudad Juarez, Mexico, protest to be allowed into the U.S. to apply for asylum in 2020.

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The Biden administration is proposing an immigration policy that could prohibit most asylum-seekers from applying for protection in the United States.

The rule would bar migrants from petitioning for protection if they didn’t seek safe haven in another country while on their way to the U.S. border, according to a draft of the proposal that was posted in the Federal Register on Tuesday.

The rule, which has been under consideration as a way to curb the near-record number of unauthorized crossings at the Southern border, is also meant to discourage migrants from making the dangerous trek through Latin America while eliminating a major source of revenue for migrant smugglers, according to language of the order.

“Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the proposed rule to lead to a reduction in the numbers of migrants who seek to cross the [Southwest border] without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks,” the proposed rule states. It was posted by the Department of Justice and the Department of Homeland Security.

But immigrant rights groups are slamming the proposal as a cruel throwback to the policies of former President Trump, who initiated a similar ban during his tenure. That policy waseventually blocked in federal court.

“Today’s announcement represents a blatant embrace of hateful and illegal anti-asylum policies, which will lead to unnecessary human suffering. Time after time, President Biden has broken his campaign promises to end restrictions on asylum seekers traveling through other countries,” Marisa Limón Garza, the executive director of El Paso-based Las Americas Immigrant Advocacy Center, said in a statement. “We urge the Biden administration to abandon policy initiatives that further the inhumane and ineffective agenda of the Trump administration.”

The rule will officially be published Thursday in theFederal Register as part of the required notice-and-comment period, and public comment will be open for 30 days.

The proposal comes as the number of encounters between U.S. Border Patrol agents and unauthorized migrants has somewhat slowed when compared to previous years.

U.S. Customs and Border Protection officials said earlier this month there were 128,410 encounters with migrants who crossed between ports of entry in January, a drop of more than 40% from the 221,675 in December. The sharpest drops included migrants from Venezuela and Nicaragua, who have come to the United States by the tens of thousands for several months.

“This is the lowest month of Border Patrol encounters since February 2021 when encounters began to increase after the most severe impacts of the COVID-19 pandemic on migration,” CBP officials said in a statement.

The new rule is also intended to slow the number of illegal crossings the Biden administration predicts will increase once the controversial Title 42 policy ends later this year.

Like the Trump-era policy, the Biden proposal is expected to be challenged in court, NBCreported Monday. Keren Zwick, director of litigation at the National Immigrant Justice Center, told NBC the policy will likely be ruled illegal as it deprives migrants of their lawful right to asylum.

Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said in a statement the Biden administration can’t expect migrants to seek asylum in foreign countries where there is no system in place.

“This transit ban 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 controversy marks another chapter in Biden’s rock-and-a-hard place saga on immigration policy. He’s also under fire from conservatives, including Texas Attorney General Ken Paxton. Late last month, Paxton and a coalition of Republican-led states sued Biden over a proposal to expand an immigration parole program and allow some migrants from Latin America to temporarily enter the United States while their asylum cases play out.

Paxton said that policy “unlawfully creates a de facto pathway to citizenship.”

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Got a tip? Email Julián Aguilar at can follow Julián on Twitter @nachoaguilar.

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