The Biden administration on Tuesday proposed a rule that immigrant rights groups, civil liberties organizations, and some Democratic lawmakers condemned as an illegal attack on asylum-seekers that resembles an inhumane policy pursued by former President Donald Trump.
The new rule, unveiled by the Departments of Justice and Homeland Security, would assume that "certain noncitizens who enter the United States without documents sufficient for lawful admission are ineligible for asylum."
"The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in countries through which they travel," the administration's summary of the rule states, outlining conditions that broadly mirror a Trump-era "transit ban" that was ultimately blocked in federal court.
Those who don't meet the more strict asylum eligibility requirements under the proposal would be subject to quick deportation.
Biden administration officials said they expect the rule to take effect in May after a 30-day public comment period and once a Trump-era mass expulsion policy known as Title 42 is terminated. (GOP-led states are trying to keep Title 42 in place.)
Advocacy groups, including the ACLU, signaled that they're prepared to take legal action to ensure the Biden policy suffers the same fate as Trump's "transit ban."
"Congress designed our asylum laws to ensure that everyone escaping persecution has a chance to seek safety in the U.S., regardless of how they must flee danger or enter the country. This asylum ban is, at its core, Trump's asylum ban under a different name," said Anu Joshi, deputy director of the National Political Advocacy Department at the ACLU.
"It will leave the most vulnerable people in much the same position as Trump's policy did—at risk and unfairly denied the protection of asylum for reasons that have nothing to do with their need for refuge," Joshi added. "We can't overstate the human suffering that will result."
Keren Zwick, director of litigation at the National Immigrant Justice Center, toldNBC News that if the Biden administration's rule "does what we expect it to do—unlawfully deprive access to asylum based on the manner of entry and/or transit route—it would be invalid like the similar Trump administration rules that were found unlawful by federal courts."
BREAKING: @POTUS proposes reviving a Trump-era asylum ban that would prohibit certain people from accessing asylum.
— National Immigration Law Center (@NILC) February 21, 2023
This asylum ban plan will worsen conditions at the border & return vulnerable people to danger. We urge POTUS to reverse course immediately.#NoAsylumBan https://t.co/vdXCmnTwmR
The proposed rule was expected after the Biden administration announced a significant expansion of Title 42 last month, even as it claimed to be preparing for the policy's end. Part of those preparations, administration officials said at the time, was rulemaking on the asylum process.
Douglas Rivlin, director of communication for America's Voice, said Tuesday that it is "hard to reconcile" Biden's campaign pledge to "turn the page on the cruelty and chaos of the Trump era" with the new asylum rule.
"Just because this news had been anticipated doesn't make it any less devastating," Rivlin said. "We should be finding ways to fix and fully resource our asylum process, not devising ways to prevent people seeking safety from accessing the asylum process under our laws."
Biden is also facing backlash from members of his own party over the rule, which Rep. Chuy García, D-Ill., slammed as a "re-implementation of the Trump-era policy that will ban people from requesting asylum, worsen conditions at the border, and return vulnerable people back to danger."
Andrea Flores, a former White House official, lamented Tuesday that "rather than make progress on addressing regional mass migration, the Biden administration has resurrected a transit ban that normalizes the white nationalist belief that asylum-seekers from certain countries are less deserving of humanitarian protections."
"For an administration that strives to uphold racial equity," Flores added, "it is deeply disheartening to watch them normalize the dehumanizing narrative that Black and brown migrants at the southern border deserve to be punished for seeking out a legal pathway that Congress provided for them."
