The Biden administration this week moved to limit the ability for illegal immigrants who have passed through other countries without claiming asylum – and in doing so was met by furious criticism from Democrats and immigration activists, who accused them of limiting asylum rights.
The administration announced the proposed rule on Tuesday, which when implemented will make migrants automatically presumed to be ineligible for asylum if they have crossed into the U.S. illegally and have failed to claim asylum in a country through which they have already traveled.
There are exemptions for unaccompanied children, and for those who are able to show they were trafficked or have an "extreme and imminent" threat to life or safety.
But, with the expansion of legal asylum pathways under the administration -- including a mass parole program currently facing a lawsuit from Republican-led states -- and the looming end to Title 42 expulsions on May 11, officials said it was a necessary move.
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"We are a nation of immigrants, and we are a nation of laws. 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," Homeland Security Secretary Alejandro Mayorkas said in a statement.
"As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry," he said.
But immigrant activists and some Democrats have refused to accept any limitation of a "right" to claim asylum in the U.S. -- even for those who have refused to use legal pathways and those who have crossed through countries without seeking refuge there.
They quickly compared it to a Trump-era transit ban that was struck down in the courts. The administration has rejected that claim given the ability of migrants to use other pathways, including by going to a port of entry and making an appointment.
Rep. Lou Correa, ranking member of the Border Security Subcommittee, tore into the move as did other House members.
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"This action will bar deserving asylum seekers arriving at the U.S.-Mexico border from claiming asylum if they passed through another country en route to the United States without seeking protection," he said. "This rule will give those seeking refuge the presumption of ineligibility to seek safe-haven in the United States—and it is unconscionable, unacceptable, and un-American."
"The ability to seek asylum is a bedrock principle protected by federal law and should never be violated," House Judiciary Committee Ranking Member Jerrold Nadler and Rep. Pramila Jayapal, said. We should not be restricting legal pathways to enter the United States, we should be expanding them."
In the Senate, the move was greeted with similar disappointment by some Democrats.
"We are deeply disappointed that the Administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation," Sens. Bob Menendez, D-NJ, Cory Booker, D-NJ, Ben Ray Lujan, D-N.M and Alex Padilla, D-Calif., said in a statement.
"In reality, they are pursuing a legal pathway in the United States. We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them," they said.
Immigration activists were even more critical in their analysis of the move, which they tied to the Trump-era limits.
"We will sue if this administration goes through with a transit ban, just as we successfully sued over the Trump transit ban," Lee Gelernt, a senior attorney with the ACLU, told the L.A. Times.
"The previous asylum transit ban was reprehensible and unacceptable, and this version is as well," Anna Gallagher, executive director of the Catholic Legal Immigration Network, said. "The right to seek asylum through a full and fair process is a bedrock principle of international and domestic law. These new restrictions undermine that right and will have inhumane and horrific consequences for our immigrant brothers and sisters."
Murad Awawdeh, Executive Director of the New York Immigration Coalition called the rule a "blatant and ruthless attack on our humanitarian obligations and the children and families seeking refuge from violence and persecution in our country."
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"The transit ban cruelly favors wealthier asylum seekers coming to the United States via air travel over those who travel by foot to seek asylum at our borders," he said. "These unnecessary and arbitrary exclusions privilege some asylum seekers over others on the basis of wealth, and is a shockingly inhumane proposal from the Biden administration. "
On the flip side, immigration hawks were also not impressed by the move. The Border Patrol union called the move "smoke and mirrors."
"The new DHS rule WILL NOT stop illegal border crossers from claiming asylum. It's just window dressing. It merely adds an additional bureaucratic step to the process," the union tweeted.
Former acting DHS Secretary Chad Wolf, meanwhile, said the move was "oddly familiar" and suggested the move was long overdue.
"Biden Admin had the ability to take this action 2 years ago," he said.