The Biden administration is planning to impose new restrictions on asylum seekers, including requiring some migrants to register using a smartphone app, that are modeled after a policy pushed by former President Donald Trump. Biden’s proposed rule, which could go into effect as early as March, comes just as the administration sunsets a controversial pandemic-era border enforcement policy that has kept millions of asylum seekers from entering the country.
That pandemic-era rule, known colloquially as Title 42, was initiated by Trump on dubious public health grounds in 2020 and is set to end in May. In short: Title 42 allowed the US to rapidly expel migrants on the basis that they would spread Covid-19, even well after cross-border travel resumed. Immigration officials claim the end of Title 42 will bring an overwhelming influx of new migrants, predicting that illegal crossings on the southern border would spike to as many as 13,000 a day — up from the January average of about 5,000 per day.
And that has led the Biden administration to search for ways to slow migration ahead of Title 42’s end, most recently through the proposed rule that the Department of Homeland Security announced Tuesday. It’s coming at a moment after border officials reported nearly 252,000 migrant encounters in December, the highest number in a single month since Title 42 was implemented.
The new rule would temporarily require migrants to schedule an appointment on the CBP One smartphone app to enter the US through an official border crossing or, alternatively, show that they were already denied asylum in Mexico or another country that they traveled through on their way to the US. If they fail to do so, they would be turned away. It would go into effect for two years, with the possibility of an extension, if approved following a 30-day period in which the public will have the opportunity to comment on the proposal.
Immigrant advocates have said that the proposed rule poses dangerous and even deadly consequences for migrants who would be turned away as a result. The CBP One app has drawn criticism from some Democrats over privacy concerns, technical issues, and barriers to access for asylum seekers who do not have cellular or internet access or are unable to navigate it in their native language.
The other issue with the app approach is safety: If an asylum seeker manages to schedule an appointment through the app, they may need to wait weeks or months before being allowed to enter the US. Some asylum seekers may not be able to afford to wait that long if they’re facing immediate danger. And if they can’t wait, they could be forced to apply for protections in another country without a functioning asylum system.
No Central American countries have capabilities to process and protect large numbers of asylum seekers that come close to that of the US. For instance, Guatemala, El Salvador, and Honduras processed no more than 1,000 asylum applications altogether in 2022, according to the United Nations; by comparison, the US docketed almost half a million more immigration cases and issued asylum decisions in more than 50,000 of them in the same year.
“To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values,” Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said in a statement.
It’s unclear whether the rule will stand, in part because it echoes Trump policies that have been repeatedly struck down by federal courts. Trump tried and failed to institute rules that barred anyone from applying for asylum at the southern border if they had transited through a third country en route to the US and that barred people from entering the US without going through an official border crossing.
Should the Biden administration succeed, the new rule would mark its latest embrace of a Trump immigration policy President Joe Biden promised to reject — and another reminder of how Trump reshaped norms around America’s humanitarian obligations.
How Biden came to embrace Trumpian border policies
Biden came into office following a campaign in which he promised to renew the US’s focus on protecting vulnerable immigrant populations. And he began his tenure making an effort to distinguish himself from Trump’s cruelty on the border as well as the harsh immigration enforcement policies of the Obama administration, which oversaw record deportations.
But Republicans have used the border as a political cudgel against the president. House Majority Leader Kevin McCarthy visited the border earlier this month in an effort to bring attention to officials’ high number of encounters with migrants, accusing Democrats of trying to “ignore the issue and act like it’s not happening.” Ahead of the 2024 election, Biden’s border policies are expected to be scrutinized and criticized as part of a new wave of House GOP investigations.
Those attacks belie the fact that Biden is stricter than many of his Democratic colleagues on the border. He maintained Trump’s Title 42 policy, for instance, even as he made attempts to administer the immigration enforcement system more humanely, including by narrowing the categories of people considered priorities for deportation and offering new temporary protections to citizens of certain conflict-stricken countries.
Still, with immigration and border security becoming an increasingly potent area of attack by the GOP, even some moderate Democrats have embraced Trumpian border policies. And they’re putting pressure on Biden to do the same.
In 2022, five Democratic senators — Kyrsten Sinema and Mark Kelly of Arizona, Joe Manchin of West Virginia, Raphael Warnock of Georgia, and Maggie Hassan of New Hampshire — joined Republicans in introducing a bill that would have temporarily preserved the Title 42 policy, under which migrants arriving on the southern border have been rapidly expelled nearly 5.5 million times.
In the absence of Title 42, Tuesday’s proposed rule would offer a new tool to turn migrants away, though the administration contends that it’s not a redux of the Trump policies that were previously struck down.
By encouraging people to legally enter the US through official border crossings, the administration claims the rule would deter smuggling, prevent overcrowding in border facilities, and allow for migrant processing in an “effective, humane, and efficient manner.” The administration has also noted that it intends to concurrently expand other legal pathways for migrants to enter the US, including refugee processing in the Americas, visas for seasonal work, and parole programs for migrants with urgent humanitarian needs.
“We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners,” DHS Secretary Alejandro Mayorkas, who is facing possible impeachment by the House GOP, said in a statement.
The administration has also framed the new proposed rule as running parallel to an existing program under which citizens of Haiti, Cuba, and Venezuela — countries with which the US has a strained diplomatic relationship — are being paroled into the US in numbers up to 30,000 per month under a similar system, or else sent to Mexico.
But those are distinctions from Trump-era policies without a meaningful difference. The proposed rule would still put migrants in harm’s way: For instance, Mexico, which hosted more asylum seekers than any country except the US and Germany in 2021, is still facing an epidemic of violence, despite a slight drop in murders last year. Some migrants might therefore be more inclined to rely on smugglers to get them across the border.
Migrants also may not be afforded the same protections in countries that don’t have robust asylum programs or that don’t have the same legal standards as the US, which grants asylum in cases where an applicant can prove a “well-founded fear of persecution” based on their race, religion, nationality, political opinion, or membership in a “particular social group,” such as people who identify as LGBTQ.
And the proposed rule would limit migrants’ ability to avail themselves of their right to seek asylum in the US, which has for decades been guaranteed under federal law. The Trump administration’s asylum rules were struck down on different grounds relating to mistakes in how they were promulgated, but that nevertheless has left advocates hopeful that the new proposal won’t survive a court challenge as it currently stands.