Before Biden proposed it, US officials clashed over the asylum restriction and its legality

Washington – In July 2021, as the number of migrants apprehended at the US border increased, posing major operational and political challenges to President Biden’s fledgling administration, senior officials proposed a drastic measure: making recent arrivals ineligible for asylum.

The proposal includes denying asylum to migrants who enter the US between official ports of entry after failing to seek asylum in other countries, contradicting Mr Biden’s pledges a year ago to expand access to the US asylum system. following restrictions under former President Donald Trump.

Four former senior U.S. officials spoke to CBS News on condition of anonymity to discuss the internal deliberations, which the White House said at a high level that summer to limit immigration as one of several policy options to reduce illegal border crossings.

But despite the opposition of some named people, the administration did not implement this plan at the time. Dana Remus, who was White House counsel at the time, warned that it could be ruled illegal because federal courts have ruled that similar regulations from the Trump administration violated US asylum law.

Remus, one of the officials, warned that moving forward with the proposal would carry “a high risk of litigation” and that the administration should sufficiently separate its policy from the Trump administration’s asylum ban. withstand legal scrutiny.

Some of the people named said the restrictions would prevent illegal immigration and help the administration manage the escalating crisis at the southern border, while other administration officials argued the move would be illegal, trample on migrants’ rights and violate Mr. Biden’s campaign promises.

US law gives migrants on US soil the right to seek asylum regardless of how they entered the country. In order to obtain asylum, migrants must prove that they are fleeing persecution based on their race, nationality, religion, political opinion or membership of a social group – a high legal threshold.

Disagreements over the asylum cap and concerns over its legality have been part of it more extensive faults Among the progressive appointees in the Biden administration who oppose asylum restrictions are officials who believe the restrictions are necessary to deter illegal border crossings.

“The political reaction has been very divided,” Biden’s designated brother told CBS News.

In 2021, officials also clashed over proposals to deport older unaccompanied minors amid record arrivals of migrant children; Persuading Mexico to return asylum seekers rejected under the “safe third country” agreement; and resurrecting a version of the Trump administration’s policy requiring migrants to wait for asylum hearings in Mexico.

As migrant apprehensions at the southern border hit record highs, pressure to limit asylum continued on the administration. Administration last week was published A version of the asylum restriction that US authorities believe is necessary to prevent a massive surge in border arrivals while unable to deport migrants under the pandemic-related migration restrictions known as 42.

The proposed rule, which would prevent migrants from seeking asylum in a third country if they entered the country illegally, would effectively allow the government to quickly deport most non-Mexicans and ban them from the United States for five years.

After a 30-day preliminary review process open to public comment, officials plan to implement the rule no later than May 11, when the COVID-19 public health emergency may expire. Chapter 42. The restriction on the granting of asylum shall be maintained for at least two years with the possibility of extension.

The proposed deal has drawn sharp criticism from immigrant rights advocates and many Democratic lawmakers, who say it undermines Mr. Biden’s promises to overhaul the former president’s border policy and expand protections for asylum seekers fleeing violence. He rarely had Republican support.

The American Civil Liberties Union (ACLU) has vowed to take legal action against the deal once it ends. “The proposed rule is illegal for the same fundamental reason as Trump’s bans: It violates asylum laws passed by Congress,” Lee Gelernt, the agency’s senior immigration attorney, told CBS News. ‘ACLU.

Department of Homeland Security spokesman Luis Miranda said the administration is “confident in the legal authority to implement this provision.”

Senior officials in the current administration have admitted that imposing asylum restrictions is not their first or second “priority” on immigration. But they say the policy is an emergency measure necessary at historic levels of migration in the Western Hemisphere. Without it, they estimate, migrant arrivals at the southern border could reach 13,000 a day by the time Title 42 expires.

Senior Biden administration officials have also denied that their proposed asylum restrictions are similar to the Trump administration’s efforts to severely limit asylum, saying the policy would jeopardize broader humanitarian benefits, including for unaccompanied children and asylum seekers.

Officials also noted that the Biden administration, unlike the Trump administration, is simultaneously expanding opportunities for migrants to enter the United States legally. Officials say barring most asylum claims between ports of entry encourages migrants to seek out those legal systems.

The administration has pledged to allow up to 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela to legally enter the United States each month if they have American sponsors. It also allows nearly 20,000 vulnerable migrants in Mexico to access ports of entry through a mobile app each month.

In the text of the proposed asylum restriction, the administration sought to distinguish its plan from the Trump administration’s rules that bar migrants from seeking asylum whether or not they cross the border between ports of entry. He did not seek asylum in third countries, both of which have been ruled illegal by federal courts.

His proposed policy, which the Biden administration says in its 153-page rule, is “more limited and less categorical” than Trump’s asylum bans.

Privately, some of Biden’s appointees acknowledged the proposed rule was a sweeping restriction that would be implemented despite Biden’s detailed promises during the 2020 campaign to “rebuild our housing laws.” After all, Mr. Biden pointed out in one of the debates with Mr. Trump that his opponent was “the first president in the history of the United States” to issue a decree that “everyone who seeks asylum in another country should be.”

Asked Wednesday by CBS News whether the proposed rule would conflict with Biden’s promises to restore asylum, Homeland Security Secretary Alejandro Mayorkas said, “I don’t think so.” .

“I don’t think this rule would detract from the precious thing that is our housing system. I strongly believe it,” Mayorkas said, noting that the department will use public input to “shape” the final settlement.

Other appointees disagreed with the rationale for the change, given the unprecedented levels of mistreatment of registered migrants in 2021 and 2022 and political pressure on the issue from key Republican critics as well as Democratic leaders of host cities and states. .

“The way I see it is when Democratic mayors start saying ‘this is bad,’ because it’s not just (Texas Gov. Greg) Abbott or just right-wing Republican governors, it’s people who you think have a political agenda,” the former official said. said.

Another person who was named said the settlement was the wrong policy decision even though it would reduce the number of migrants arriving at the southern border.

“It’s illegal. I don’t care if it works or not. It’s not really a problem because we can’t do illegal things,” the person said. was named.

Alida Garcia, who served as a senior White House immigration adviser in 2021, said the administration made a “fundamental mistake” by relying on Chapter 42 to manage migration without paying enough attention to building capacity to process migrants along the U.S.-Mexico border. border. border.

“It was always going to be difficult to get back to being legal under American and international law and respecting people’s rights,” said Alida, who now heads advocacy at the liberal lobby group FWD.us. “The lowest common denominator prevailed because it’s the easiest, which is to kick the 42 subject field.”