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

Washington — A dozen Senate Democrats forcefully denounced a sweeping border restriction President Biden hopes will deter migration, telling the administration in a formal comment on Monday that it would violate U.S. 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 unlawfully after failing to seek refuge in other countries en route to the U.S. 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, in 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 U.S.-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 signed by Senators Bob Menendez, Alex Padilla, 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 policy 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 any time in U.S. history.

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 U.S. unlawfully.

While U.S. 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 U.S. 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 U.S. 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 U.S.-Mexico border unlawfully 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 U.S. illegally across the Rio Grande and other unofficial crossings, it has faced significant criticism from progressives and Republicans, though for different reasons. 

Migrant advocates and some Democrats have argued the new strategy relies on restrictive asylum policies similar to ones 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 unlawful 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 U.S. sanctuary.