After vowing to expand asylum, Biden moves to limit access amid record border arrivals

Washington — During his second week in office, President Biden gave officials nine months to issue regulations that would make it easier for migrants fleeing gangs or domestic violence to obtain asylum, a policy that would signal a clear repudiation of attempts by the Trump administration to shut down the US asylum system.

But two years later, amid record arrivals along the US-Mexico border, the Biden administration has yet to issue rules that could expand asylum eligibility. Instead, the administration is expanding a Trump-era border policy that prevents certain immigrants from applying for asylum and proposes limits on asylum eligibility.

Since Mr. Biden mandated the asylum eligibility rules in a February 2021 executive order, there have been disagreements within his administration about how generous the regulations should be, three people with direct knowledge of the debates told CBS News. , who requested anonymity to describe the internal deliberations.

Some senior administration officials have raised concerns about issuing rules that could make more immigrants eligible for asylum and make it more difficult for them to be deported as the administration focuses on reducing illegal border crossings, the sources said.

Although Biden directed his administration to issue them by November 2021, it is unclear when the Departments of Justice and Homeland Security, which oversee judges and officials who decide whether to grant asylum or deport migrants , they could publish the regulations.

In a statement to CBS News, Department of Homeland Security spokesman Angelo Fernández Hernández said officials were still working to publish the regulations, but did not describe the reasons for the delay or provide a timeline for publication.

“This rulemaking is a critical part of the Administration’s efforts to rebuild and improve the US asylum system and refugee resettlement program, and the Administration is committed to issuing it,” said Fernández Hernández. “Since President Biden issued Executive Order 14010 directing the development of the rule, the departments and agencies have been diligently and extensively collaborating on this joint rulemaking process. We look forward to the publication of a proposed rule once it’s finished.”


An administration official said the rules are designed to create uniform asylum eligibility standards and ensure “fairness and efficiency, without making it easier or harder to get asylum.” But advocates for asylum seekers said the regulations could help certain immigrants, including women fleeing gender-based violence, win asylum amid decades of inconsistent court decisions in these cases.

The delay in issuing the regulations illustrates a broader tension in the administration between Biden’s lofty campaign promises to dismantle his predecessor’s hardline asylum policies and the political and operational implications of an unprecedented immigration crisis throughout the southern border.

In fact, as part of a border strategy unveiled earlier this month that combines increased enforcement measures to deter illegal crossings with increased opportunities for certain immigrants to enter the US legally, the Biden administration said it would propose a regulation that would restrict, not expand. asylum eligibility.

As described by DHS, migrants would be subject to “a rebuttable presumption of asylum ineligibility” if they enter the US illegally after failing to seek refuge in other countries en route to the US. The proposal it has sparked a backlash from advocates and some Democratic lawmakers. , who have pointed out that the restriction would resemble a Trump administration rule known as the “traffic ban” that was struck down in federal court.

The Biden administration rejected the comparisons, saying its asylum restriction will include humanitarian waivers. It has also signaled that it is expanding legal migration opportunities to migrants with US sponsors and to vulnerable asylum seekers applying to enter the US through a mobile app.

Still, critics of the proposed asylum restriction say it would abandon Biden’s promise to fully restore US laws that give migrants on US soil the right to apply for asylum, which is available to those fleeing persecution for their race, religion, nationality, membership. in a certain social group or political opinion.

“The transit ban is totally inconsistent with a system of legal and humane asylum, which the president promised when he took office,” said Lee Gelernt, the lead immigration attorney for the American Civil Liberties Union. “We have not heard anything legally distinguishing Biden’s traffic ban from Trump’s ban, and therefore I would sue immediately if the administration goes ahead with its plans.”

Biden’s revamped border strategy also includes an expansion of Title 42 border removal policy, which cites public health concerns to prevent immigrants from seeking asylum. The Biden administration has said the border restriction first implemented by the Trump administration can no longer be justified on public health grounds, but the Supreme Court in late December allowed border officials to continue enforcing it at the request of US-led states. republicans.

Cecilia Munoz, who served as President Barack Obama’s top immigration adviser, said the Biden administration is operating under the constraints of an overwhelmed system that Congress has failed to reform. Some of Biden’s ambitious immigration promises during the campaign, she said, were made in response to demands by progressive advocates.

“This particular promise related to the asylum process was always going to be hard to keep,” said Muñoz, who helped oversee Biden’s transition team. “The ‘rock and hard place’ the administration has to manage here is the rock of unrealistic expectations from the left and a desire to politicize and criticize everything the right does.”


The Biden administration’s shifting approach to asylum policy is part of a longstanding debate over who should qualify for safe harbor in the US-resources system.

In fiscal years 2021 and 2022, US border officials stopped migrants 4 million times, federal statistics show. While about half of these immigrants were quickly removed from the US under Title 42, the other half were allowed to apply for asylum. Record arrivals at the border have further strained the US immigration court system, where fewer than 700 judges oversee more than 2 million unsolved cases.

The Trump administration, which has argued that migrants fleeing economic misfortune, not persecution, abuse the asylum system, issued several policies to restrict asylum and expedite the deportation of migrants. Through legal opinions, he generally barred asylum claims based on gang or domestic violence.

During the 2020 campaign, Biden promised to restore US asylum laws and denounced the Trump administration’s policies as draconian. In one of the presidential debates, she mocked Trump for being “the first president in the history of the United States” who declared that “anyone who seeks asylum has to do so in another country.”

In his February 2021 executive order, Biden directed officials to conduct a “comprehensive review” within 180 days to “assess whether the United States provides protections to those fleeing gang or domestic violence in a manner consistent with international standards.” international”. The president also gave officials 270 days to propose regulations to define the “particular social group” asylum category.

In June 2021, the Department of Justice revoked legal opinions that had disqualified immigrants fleeing domestic or gang violence from asylum, saying those cases would be governed by the rules Biden ordered defined as a “particular social group.”

As the most ambiguous asylum category, “particular social group” has been at the center of debate for decades, and courts have expressed conflicting opinions about exactly who can claim asylum for that reason. Women fleeing female genital mutilation, domestic abuse or other gender-based violence, migrants fleeing gang persecution, and LGBTQ people have applied for asylum through that category, with varying degrees of success.

The George W. Bush and Obama administrations sought to define “particular social group” through regulations, but these were never finalized. Due to different court decisions, migrants seeking asylum for this reason currently must prove that the group is made up of people who share an “immutable” common characteristic, is “socially distinct” within a society, and has “sufficient distinctiveness” that the define.

Advocates for asylum seekers have said the current legal threshold is nearly impossible to meet. Current US standards also differ from a broader definition of a particular social group by the United Nations.

Blaine Bookey, legal director of the Center for Gender and Refugee Studies, a group that serves women seeking asylum, called internal opposition within the Biden administration to issuing the regulations for particular social groups “unprincipled,” saying that denied asylum seekers could be in danger. after being deported.

Bookey also rejected the argument that the rules could drive more migration, arguing that the regulations would help the government make asylum processing more efficient and faster, as adjudicators would have uniform guidelines for deciding claims.

“It is a fallacy to think that asylum seekers living in rural Guatemala who are fleeing for their lives are going to be looking and thinking about the complex legal standards of the United States and whether they can meet them to determine whether they should escape to save himself.” his life or not,” Bookey said.

Andrew Selee, president of the Migration Policy Institute, a nonpartisan think tank, said Biden’s decision to toughen immigration enforcement stemmed from a desire to blunt political backlash over record border arrivals. It was also an acknowledgment, Selee said, that the United States does not have the resources or the personnel to quickly process the asylum claims of all migrants arriving along the southern border.

“I think they were driven by honorable idealism and at some point the realities and the difficulties of balancing actions at the border have caught up,” Selee said. “This is about how you balance access to legal avenues, protection and enforcement.”

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