Posted on May 11, 2023

U.S. Finalizes Asylum Restriction to Ramp Up Border Deportations Once Title 42 Lapses

Camilo Montoya-Galvez, CBS News, May 10, 2023

The Biden administration has finalized a sweeping restriction on asylum that it plans to use to ramp up swift deportations of migrants who cross the U.S.-Mexico border after the Title 42 pandemic-era emergency policy sunsets on Thursday, according to internal documents obtained by CBS News.

Hundreds of U.S. asylum officers were trained on how to enforce the restriction on Tuesday and the regulation was published on Wednesday, less than 48 hours before Title 42 is set to expire. {snip}

The regulation, which is expected to be challenged in federal court, will be a dramatic shift in asylum policy, disqualifying migrants from U.S. protection if they fail to request refugee status in another country, such as Mexico, on their journey to the southern border.

The rule also represents a major pivot by President Biden, a Democrat who campaigned on restoring access to the U.S. asylum system after numerous Trump administration rules made it more difficult for migrants to secure refuge on American soil. In fact, the regulation published Wednesday resembles a Trump-era policy struck down in federal court that Mr. Biden decried in 2020.


Under the rule, migrants who cross the southern border without authorization will be presumed to be ineligible for asylum if they can’t prove they previously requested protection in a third country. In practice, it will disqualify most non-Mexican migrants who enter the U.S. between ports of entry from asylum.

Migrants who secure an appointment to enter the U.S. under a mobile app-powered system will not be barred from asylum under the policy. The rule will also not apply to unaccompanied children.

According to internal training documents, only migrants with “exceptionally compelling circumstances” will be able to overcome the rule’s asylum bar. Those include migrants with an “acute medical emergency,” those who face an “imminent and extreme threat” in Mexico and victims of “a severe form of human trafficking.”

In order to avoid being deported and banished from the U.S. for five years, those who don’t qualify for any exemption will need to pass interviews with heightened standards designed to lead to more rejections than traditional “credible fear” interviews, according to the training materials.

The restriction is the centerpiece of the Biden administration’s attempt to blunt a potentially historic increase in the number of migrants crossing the U.S.-Mexico border when the Title 42 expulsions are discontinued at midnight on Thursday. Unauthorized border arrivals have already spiked, with Border Patrol averaging more than 8,700 daily migrant apprehensions during a three-day period this past week, an increase from the 5,200 average in March.

While Title 42 allowed U.S. border officials to cite public health concerns to expel hundreds of thousands of migrants without hearing their asylum claims, the new rule is, in many ways, a tougher policy. Because migrants expelled under Title 42 did not face immigration or criminal penalties, the measure encouraged some to make repeated border crossing attempts.

But those who can’t prove they are eligible for an exemption to the new rule will face swift deportation to Mexico or their home country — as well as a five-year banishment from the U.S. — under a process known as expedited removal. If they try to re-enter the U.S. after being deported, they could face criminal prosecution and jail time, the Biden administration has warned.