Group of Democrats say Biden’s proposed asylum restriction is illegal

Washington — A dozen Senate Democrats forcefully denounced a sweeping border restrictions President Biden hopes will deter migration, telling the administration in a formal comment on Monday that it would violate US asylum law if it moves forward with the proposal.

The Biden administration’s proposed regulation would disqualify non-Mexican migrants from asylum if they cross the southern border illegally after failing to seek refuge in other countries en route to the US Administration officials have argued that, unless the policy is enacted, migrant arrivals will spike to record levels later this spring, when a pandemic-era border restriction known as Title 42 is set to lapse.

But the group of Democratic senators called the proposed asylum restriction “unlawful” and “counterproductive,” joining thousands of migrant advocates and organizations, including the United Nations refugee agency, formally imploring the administration to immediately withdraw the regulation.

The proposal, the Democratic lawmakers wrote in their comment against the proposed rule, is a “revised version” of a near-total ban on asylum that the Trump administration enforced briefly in 2020, before it was struck down in federal court.

“Although we support the administration’s goal of managing migration at the US-Mexico border by creating new efficiencies in the asylum system, this rule violates our legal obligations to protect refugees fleeing persecution and usurps Congressional authority by adding unlawful bars to asylum eligibility,” the senators added.

The public comment in opposition to Mr. Biden’s proposal was led by senators Bob Menendez and Alex Padilla, and also signed by senators Ed Markey, Jeff Merkley, Bernie Sanders, Cory Booker, Elizabeth Warren, Patty Murray, Ron Wyden, Ben Cardin, Ben Ray Lujan and Mazie Hirono.

The scathing rebuke from a dozen Democratic Senators and allies of the White House on most political matters illustrates the tricky political situation Mr. Biden has found himself in two years into his presidency amid an unprecedented migration crisis along the southern border, where migrants have been arriving in greater numbers and from more countries than at any time in US history.

CIUDAD JUAREZ, MEXICO - JANUARY 09: Immigrant families from Venezuela arrive back into Mexico after being expelled from the United States on January 09, 2023 to Ciudad Juarez, Mexico.  / Credit: / Getty Images

CIUDAD JUAREZ, MEXICO – JANUARY 09: Immigrant families from Venezuela arrive back into Mexico after being expelled from the United States on January 09, 2023 to Ciudad Juarez, Mexico. / Credit: / Getty Images

After border arrivals spiked in late 2022, Mr. Biden announced an overhaul of his administration’s strategy to manage migration in early January. To deter illegal crossings, officials increased the number of countries whose citizens could be swiftly turned back to Mexico under Title 42 if they entered the US illegally.

While US border officials have expelled hundreds of thousands of migrants under Title 42 since the public health law was invoked in March 2020 by the Trump administration, the US could only expel Mexicans and some Central Americans to Mexico before Mexican officials agreed to accept Cubans, Haitians , Nicaraguans and Venezuelans in January.

Mr. Biden’s administration simultaneously expanded opportunities for migrants to enter the country legally, allocating 30,000 spots per month for migrants with American sponsors to fly to the US and allowing vulnerable migrants in Mexico to secure appointments to enter the country along official border crossing through a phone app.

With the expiration of the COVID-19 public health emergency set to trigger Title 42’s termination on May 11, the administration is planning to deter migrants from crossing the US-Mexico border illegally through the proposed asylum restriction, which would allow officials to more quickly deport those who cannot prove they are exempt from the rule.

While Mr. Biden’s recent strategy has so far led to a sharp drop in the number of migrants attempting to enter the US illegally across the Rio Grande and other unofficial crossings, it has faced significant criticism from progressives and Republicans, although for different reasons.

Migrant advocates and some Democrats have argued that the new strategy relies on restrictive asylum policies similar to those enacted by former President Donald Trump. Republican lawmakers, on the other hand, have said the administration lacks the legal authority to accept tens of thousands of migrants each month outside the regular visa system.

Pointing to the reduction in illegal border crossings since January’s policy changes, the Biden administration has portrayed the criticism from Republicans as inconsistent with their calls to reduce illegal migration.

In response to the progressive criticism, the administration has rebuffed accusations that its strategy resembles Trump-era policies, highlighting the creation of new legal migration channels. Its proposed asylum restriction, it has argued, also contains broader humanitarian exemptions than the Trump administration’s attempts to disqualify migrants from US sanctuary.

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