Biden administration weighs Trump-like asylum limits as it braces for end of Title 42 border restrictions

Washington — Bracing for the court-mandated termination of pandemic-related border restrictions that have been in place since 2020, the Biden administration is considering enacting an asylum restriction resembling a Trump-era policy struck down in court, two people familiar with the matter told CBS News.

The proposed policy, which would bar certain migrants from seeking U.S. asylum if they failed to previously seek protection in other countries, has not received a final approval within the administration, according to the sources, who requested anonymity to discuss internal deliberations.

But the partial asylum ban is one of several policies under consideration by top officials at the White House and the Department of Homeland Security (DHS) as the administration prepares for the end of Title 42, a public health order that has allowed U.S. border authorities to quickly expel hundreds of thousands of migrants, mostly to Mexico, without allowing them to request asylum.

Marsha Espinosa, a spokesperson for DHS, called reports about how U.S. policy may change inaccurate, saying “no such decisions have been made.”

“The Administration is committed to continuing to secure our borders while maintaining safe, orderly and humane processing of migrants,” Espinosa added. “This will remain the case when Title 42 is lifted.”

The administration has also considered expanding the processing of asylum-seekers at ports of entry along the southern border, as well as a program that has allowed some Venezuelans to enter the U.S. legally at airports if they have financial sponsors in the U.S.

On Nov. 15, a federal judge declared the Title 42 policy unlawful and later gave the Biden administration until Dec. 21 to stop using the public health authority, which was first invoked under former President Donald Trump in March 2020. The Justice Department said in a court filing Friday that the administration will decide whether to appeal the court ruling by Dec. 7.

While it was always supposed to be a temporary, emergency measure, the end of Title 42 has raised concerns about even greater numbers of migrants reaching the U.S.-Mexico border and straining the federal government’s capacity to process them. Republican lawmakers, and some moderate Democrats, have expressed concerns about the administration’s ability to manage a bigger influx of illegal crossings.

In fiscal year 2022, a 12-month time span, U.S. Customs and Border Protection stopped migrants over 2.3 million times, a record high, though many of those encounters involved repeat border crossings. During that time span, U.S. border officials carried out over 1 million Title 42 expulsions, expelling the majority of Mexican and Central American adults who they processed, federal data show.

The consideration of the asylum limits, first reported by Axios earlier this week, has alarmed advocates for asylum-seekers, who have called on the Biden administration to reject deterrence-focused policies they say ignore international and domestic refugee law, which allows migrants to request humanitarian protection, even if they entered the country illegally.

In 2019, the Trump administration enacted a similar policy, known as the “transit ban,” to disqualify most non-Mexican migrants from U.S. asylum. But the policy was ultimately struck down in federal court.

“If it’s the Trump transit ban, or something similarly flawed, we will sue immediately, as we did during the Trump administration,” said Lee Gelernt, an American Civil Liberties Union (ACLU) attorney who challenged the 2019 asylum restriction.

The U.S. asylum system was designed to protect migrants fleeing persecution because of their race, nationality, political views, religion or membership in a social group. But a mounting backlog of cases has crippled the government’s ability to decide asylum cases in a timely fashion, placing asylum-seekers in limbo and creating an incentive for other migrants to use the system to work in the U.S.

For months, the Biden administration has publicly said it has been making preparations for the end of Title 42, which the Centers for Disease and Control and Prevention (CDC) tried to end this spring, though it was blocked from doing so by a lawsuit from Republican-led states.

A DHS plan released at the time called for a surge in resources and personnel to the southern border, increased collaboration with migrant services groups, a crackdown on human smugglers and efforts with countries in Latin America to deter U.S.-bound mass migration.

The plan also called for increased prosecutions of certain migrants, including those who crossed the border illegally multiple times, and the use of expedited removal, a decades-old process that allows U.S. border agents to quickly deport migrants who don’t request asylum or who fail to establish credible fear of persecution. 

In a call with Latin American press last week, Blas Nuñez Neto, the acting assistant DHS secretary for border and immigration policy, said the U.S. would seek to prosecute migrants who try to evade Border Patrol and to deport those who enter the country illegally under expedited removal, which includes a 5-year banishment from the U.S.

However, like under Title 42, the U.S. may not be able to deport all migrants under the expedited removal process due to logistical and diplomatic reasons. Countries like Cuba, Nicaragua and Venezuela have, in recent years, limited or rejected U.S. deportations. 

Mexico, on the other hand, has generally only accepted the return of its own citizens and migrants from Guatemala, Honduras and El Salvador. In mid-October, Mexico agreed to accept some Venezuelans expelled under Title 42, but that legal authority is set to expire later this month.

Nuñez Neto said last week that the U.S. now has the ability to carry out deportations to Nicaragua. It is also talking to Mexico and other countries to see if they can facilitate the return of Venezuelan migrants under U.S. immigration law, Nuñez Neto said.

A Biden administration policy designed to weed out weak asylum claims has shown signs of success, rejecting 50% of asylum-seekers at the initial screening phase and granting asylum to eligible migrants within months, instead of years. But the program has been implemented on a very limited scale since launching in June.