Phones across the immigration policy world began buzzing last week with some dreaded news: The Biden administration had proposed a new federal rule to severely restrict access to asylum at the border. Coming ahead of the administration’s plan to phase out the so-called Title 42 policy, the rule would render migrants who had crossed through another country on their way to the U.S. border ineligible for asylum unless they had already applied for and been rejected for asylum in the country of transit first. Exceptions would be made only if the asylum-seekers in question had acute medical or safety concerns—as discretionarily determined by Customs and Border Protection personnel, of course—or if they’d used the notoriously glitchy CBP One app to secure one of the limited daily set appointments, making applying to humanitarian protections a scramble akin to securing Taylor Swift tickets.
Readers who’ve spent the last six years reading about border restrictions and anti-asylum policies might be tempted to allow their eyes to glaze over at this latest news round. Even for beat reporters like myself, who have spent countless hours parsing and analyzing the overlapping orders, the endless litigation, the spasmodic back and forth of injunctions and rules and stays and overturns, it is difficult to even remember every discrete policy that’s come and gone, let alone keep track of those comings and goings.
But on this occasion, we can write plainly. This latest Biden policy is, in fact, just a rehash of a Stephen Miller special: specifically, the so-called transit ban issued in the summer of 2019. That it bears such an exact resemblance makes it easy to dismiss this most recent twist in the tail as more of the same—just another turn in the winding road of humanitarian migration policy. Setting aside the frightening implications of that jadedness coming as the impacts of climate change make mass refugee migrations ever more likely, it’s an understandable reaction that misses one key point: It’s not Donald Trump and Stephen Miller laying down the law this time.
Rather, it’s Biden, the president who campaigned talking up his disgust at emblematic Trump restrictions and, hours after being sworn in, theatrically signed multiple executive orders rolling back several of his predecessor’s immigration actions. Perhaps the fact that these rollbacks functionally accomplished little off the bat should have been an early warning sign that the new administration wouldn’t be the clean break for which many advocates had hoped. Still, there was a good deal of optimism. Biden had seemed to internalize some crucial lessons from his stint as vice president under Obama, including the power of public-sector investment to prop up a reeling economy.
Obama’s attempts to appease Republicans with heavy-handed immigration enforcement plainly failed, causing him to switch tacks in his second term—yet not before having been branded the “deporter in chief” by irate advocate groups who’d felt stabbed in the back. Biden had a front-row seat to the whole sad affair, and seemed to genuinely regret earlier similar stances of his own, including his commitment to tough-on-crime policies as a U.S. senator in the 1990s. The new president terminated the disastrous “Remain in Mexico” policy, which had been blocked by the courts anyway, and made some appointments that the pro-immigration factions liked, including appointing Ur Jaddou to clean up the mess at the U.S. Citizenship and Immigration Services.
But the cautious buoyancy began to sink as Biden kept in place the flagship Miller policy of Title 42, a pretextual use of the Covid pandemic to shut down the majority of migrants’ ability to even make an asylum claim at the border. As the months dragged on and the administration stayed mum on ending Title 42, it started to dawn on asylum advocates that Biden, for reasons political or ideological, was not interested in stepping away from Trump’s border legacy. Moreover, the lack of the malignant figure of Trump looming over the scene, with his crass brutality and sneering disgust for migrants, had made a ton of liberals tune out on the matter entirely. That the Biden policies were basically the same made no real difference. In fact, simply pointing this out now invited not solidarity but rage, with retorts of, “So, I guess you’d just prefer Trump, then?” or similar. Everyone likes to pretend they’re not a tribalist until their guy is in the crosshairs.
Eventually, Biden took some lukewarm stabs at ending the Title 42 policy, with the administration drawing up plans last spring to draw it down. When this effort was blocked by a judge after several states sued, the administration took the opportunity to expand the policy, and has kept expanding it—with the addition of Cubans, Nicaraguans, and Haitians just earlier this year—even as they continued to claim that termination was the ultimate goal. Now, almost a year after the policy’s end was first announced, the path is finally clear, with the administration telling the Supreme Court the legal questions would become moot as the Covid public health emergency itself is phased out in May.
Throughout this tortured process, Biden possessed some small portion of plausible deniability about his allegiance to this restrictionist approach, and immigration legal and human rights groups could at least imagine that things would change with the end of Title 42. After all, even if for reasons of political expediency and avoiding the operational headache of returning to normal processing, Biden had kept that draconian order in place, it wasn’t his policy. It was a hangover from the Trump era, a tool he grew too dependent on but hadn’t himself drawn up; perhaps a remnant that had to be excised for things to move forward.
But with last week’s announcement, whatever remaining deniability and/or benefit of the doubt has gone out the window. It may be a rehash of a Trump-era policy, but it is now a Biden-era policy. It has been drafted, issued, and will likely be defended in court fully at the direction of Joe Biden and his Cabinet. Not only that, it is a rehash of a policy that was rejected already by the courts, with the earlier transit ban having been struck down by a district court, a ruling reaffirmed by a three-judge appeals court panel, and then ultimately vacated.
The administration is clearly aware of these legal precedents, and is attempting to differentiate its own rule in absurd ways, primarily using the argument that it hasn’t issued an absolute ban. A fact sheet put out by the Department of Homeland Security on the new rule, which carries the Orwellian name “Circumvention of Lawful Pathways,” alludes specifically to the earlier rule, saying that the government was “also proposing to rescind the Trump-era transit ban and entry ban, which—unlike this proposed rule—imposed categorical bars on eligibility for asylum and thus conflict with the approach taken in the proposed rule.”
This is a bit like saying that stringent voter ID laws can’t be called voting eligibility restrictions or held to that sort of scrutiny because they’re not bans, after all. It’s a cute trick in theory, but here in the real world, the policy severely limits access to something to which access should not be limited. Asylum law is very explicit about the fact that, while claims can be evaluated and rejected, the ability of a noncitizen arriving on U.S. soil to make a claim in the first place is almost unconstrained. There is no “rebuttable presumption” in the law because asylum is not a luxury, and no matter the endless discourse hinting at the contrary, it is not something political leaders can just decide to have or not have. That hasn’t changed despite the government’s insistence on violating the law for the past three years—a fact that, by the way, it has never contested in court, merely claiming it was necessary under the emergency circumstances.
After all the shouting, the reflexive restrictionism of the Trump era has become the default—and Biden, at least, doesn’t want to go back. A good deal of the domestic discussion of the new rule has been more about how they might impact states and localities receiving asylum-seekers from the border than the impact on migrants themselves. The end of Title 42 was an opportunity to at long last return to some semblance of normal processing, a system that was by no means perfect but which at minimum attempted to respect the principle that accepting humanitarian migration is an absolute responsibility of modern democratic states.
The proposed rule is now in a notice-and-comment period until March 27, after which there may be some modifications, though it’s unlikely to substantially change. It may well just get struck down in court anyway, with several groups already signaling an intention to sue to deploy similar arguments to those that axed the earlier transit ban. In any case, now we know—finally and clearly—where Biden stands on the matter, and how that stance has ensured the lasting impact of Trump’s asylum machinations.