Biden Administration Considers Migrant Restrictions Similar to Trump Policies

WASHINGTON — The Biden administration is considering substantial new limits on the number of migrants who could apply for asylum in the United States, according to people familiar with the proposal, which would expand restrictions similar to those first put in place along the border by former President Donald J. Trump.

The plan is one of several being debated by President Biden’s top aides as the country confronts a continuing surge of arrivals at the border. It would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.

People familiar with the discussions said the new policy, if adopted, could go into effect as soon as this month, just as the government stops using a public health rule that was put in place at the beginning of the coronavirus pandemic by the Trump administration and became a key policy to manage the spike in crossings during Mr. Biden’s tenure. A federal judge has ordered the administration to stop using the health rule on Dec. 21.

But the idea of broadly prohibiting migrants from seeking asylum strikes directly at the heart of decades of American and international law that has shaped the United States’ role as a place of safety for displaced and fearful people across the globe.

And it builds on an approach embraced by Mr. Trump and Stephen Miller, the architect of the former president’s immigration agenda. Eager to keep migrants out of the United States, the Trump administration imposed what it called a transit ban and refused to consider asylum claims for migrants who had not sought refuge in other countries as they made their way to the American border.

The similarities have enraged human rights advocates, who recall Mr. Biden’s full-throated condemnation of his predecessor’s immigration policies during the 2020 campaign.

“For the Biden administration to resurrect that horrific policy would be playing into Stephen Miller’s hands,” said Eleanor Acer, the director for refugee protection at Human Rights First, which issued a report in 2020 about the repercussions of the transit ban. “It’s almost like Stephen Miller is still in the White House trying to block from asylum people seeking protection from persecution.”

People familiar with the internal debate disputed that the Biden administration would embrace a policy that is the same as Mr. Trump’s programs. They also said the approach was not final and had not been presented to Mr. Biden or Alejandro Mayorkas, the homeland security secretary, for a decision.

One person briefed on the discussions said a new policy, if adopted, would be rolled out alongside expanded opportunities for migrants to come to the United States legally and decide not to make the often dangerous trek across Mexico toward the U.S. border.

The person, who asked for anonymity because the closed-door discussions are continuing, said the goal of Mr. Trump’s policies was to keep people out while the Biden administration was trying to find a way to let those with valid claims in legally without an uncontrollable rush at the border.

Administration officials have repeatedly said they are pleased with a recent policy that started to turn Venezuelan migrants away more quickly if they tried to cross illegally into the United States. But the policy also established a legal humanitarian pathway for 24,000 eligible Venezuelans. Officials said the combination of the two policies had led to a significant drop in the number of Venezuelans entering the country illegally.

“We’ve been preparing for this,” Karine Jean-Pierre, the White House press secretary, told reporters last week. “We’ve been working to accelerate asylum process times so those without a legal basis to remain can be removed promptly. And we’ve set up anti-smuggling operations with Mexico and Guatemala, as I had mentioned, as we prepare to transition to the next phase of our work to manage the border.”

White House officials declined to comment specifically on the possibility of broad new restrictions on asylum. But several people familiar with the proposal said it was one of multiple ideas under consideration. Others include increasing prosecutions for people who cross illegally and expanding a practice that fast-tracks deportations for people who do not say that they fear returning to their country.

Democrats have been widely critical of the Trump administration’s transit ban, and Mr. Biden issued an executive order early in his presidency instructing officials to review the policy.

Mr. Trump and Mr. Miller have repeatedly raged against the current administration’s border management. Mr. Miller tweeted this week that Mr. Biden’s policies amount to “a giant, ongoing, backdoor amnesty for new illegals.” In announcing his 2024 presidential bid, Mr. Trump said that “our southern border has been erased and our country is being invaded by millions and millions of unknown people.”

The Biden administration has not provided amnesty to migrants, and border officials do background checks on everyone who is apprehended.

But any hint of restoring some of the Trump-era transit ban policy would be an extraordinary step for a president who campaigned to restore the asylum process that his predecessor all but dismantled.

Republicans have consistently criticized the administration, pointing to its rollback of some of the Trump policies as part of the problem. And those attacks will increase in January when the G.O.P. reclaims control of the House, particularly if there is a rush of illegal crossings after the public health rule — known as Title 42 — is lifted. Last week, the top Republican in the House, Representative Kevin McCarthy, renewed threats to impeach Mr. Mayorkas if he does not resign, because of his handling of the situation at the border.

The public health rule became a useful tool to quickly expel migrants, many of whom are fleeing violence, unstable governments and poverty exacerbated by the pandemic, with the hope of seeking refuge in the United States.

Officials have long known that the public health order would eventually be lifted and would most likely exacerbate illegal crossings and feed Republican attacks. The Department of Homeland Security had prepared a six-pillared plan for how to respond to a sharp increase in illegal crossings. And yet, the Biden administration still appears to be scrambling to come up with new policies to help manage them.

The public health authority became a critical instrument used to quickly expel thousands of migrants a day. And the other processes that the government typically uses to address illegal crossings take much more time — often more than an hour a person compared with the approximately 15 minutes it takes when using the public health authority.

The hope among some officials in the Biden administration is that new asylum restrictions will lead to fewer illegal crossings.

Both the Biden and Trump administrations see the restrictions on access to asylum as a way to manage the high levels of crossings at the southwestern border, which has become the main route for people to get a shot at being in the United States as legal pathways have shrunk over the years. Congress has been unable to agree on proposals to update the long-outdated immigration system.

The Trump policy faced legal challenges from the start. And a Biden administration version would most likely end up in court, as well.

Immigration advocates have been disappointed with the lack of progress the White House has made in restoring the asylum system as the president pledged he would do.

But since the beginning of the administration, immigration has become one of Mr. Biden’s least favorite topics. Many of the pro-immigration advocates who joined the administration in 2021 with the expectation that it would roll back Mr. Trump’s restrictive policies have left in frustration, and more enforcement-minded advisers are the ones devising new policies.

“If the reported story is true, the Biden administration would further step away from our nation’s commitment to offer refuge to asylum seekers,” Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, said in a statement on Thursday. “I will firmly oppose this misguided attempt to rewrite our asylum laws without congressional approval, just as I firmly opposed the same efforts under President Trump.”

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