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Asylum protections were the target of the left and the right this week, as both the White House and the House GOP laid out plans for limiting pathways for those fleeing persecution.

While Republicans rolled out a plan to severely limit asylum rights — arguing such a move is necessary with the lifting of Title 42 — the Biden administration likewise unveiled a new regulation that, while less extreme, would also dramatically restrict who is eligible for the protections.

The refrain “We are a nation of immigrants, but we are also a nation of laws” was used to pitch the respective plans in two different places on Thursday, the day Title 42 was officially rescinded.

Homeland Security Secretary Alejandro Mayorkas used the phrase at a White House press briefing announcing the administration’s response plan; Rep. Tom McClintock (R-Calif.) repeated it on the House floor in calling for passage of the GOP bill.

“There are some pretty significant and meaningful distinctions between the Biden administration’s approach, including that regulation, and what House Republicans did yesterday. But the bottom line is that there’s this clear bipartisan effort and attention to ways to potentially limit the population of people who could qualify for asylum in the U.S.,” said Jorge Loweree, managing director of the American Immigration Council.

“That’s something that we don’t anticipate is going to go away. This is the new frontier in immigration policy.”

Biden’s new asylum rule

To be sure, the GOP bill is far more expansive than President Biden’s new asylum rule. The bill that passed Thursday evening slices away asylum rights at every turn, limiting who can travel to the border to apply, upping the standard for passing an initial screening, and then tightening the categories under which people can be granted protection based on their identity or beliefs.

But the Biden plan mimics a prior Trump policy known as a transit ban, largely blocking asylum to anyone who doesn’t first apply and get denied for asylum elsewhere along their journey to the U.S. 

It’s a move likely to limit pathways for anyone who cannot get a direct flight to the U.S., something that often requires securing a tough-to-get tourism visa. And places like Cuba and Venezuela or others with limited direct flights would largely be cut out from applying. 

Only those within Mexico or Canada would be able to travel by car to present themselves at the border and seek asylum, cutting off many who otherwise travel throughout Latin America to arrive at the border.

The Biden rule assumes those who do not first get denied for asylum elsewhere are ineligible for asylum — an assumption they can seek to challenge in immigration court, a higher bar for what is already a difficult protection to secure.

Speaker Kevin McCarthy (R-Calif.)
Speaker Kevin McCarthy (R-Calif.) speaks during a press conference after the passing of Secure the Border Act on Thursday, May 11, 2023.

The American Civil Liberties Union sued over the policy just minutes after it took effect shortly after midnight Thursday, noting in a press release that it successfully challenged a similar Trump-era policy in court. 

“The asylum bans were cruel and illegal then, and nothing has changed now,” the group said.

But the similarities between the Trump and Biden plans weren’t lost on Biden allies either.

One-time Biden challenger Julián Castro, shared on Twitter a clip of one of the 2020 presidential debates, with Biden pointing to former President Trump and calling him “the first president in the history of the United States of America that says anybody seeking asylum has to do it in another country. That’s never happened before in America.” 

Castro, who served as secretary of Housing and Urban Development during the Obama administration, called it a promise broken. 

“Today, with his new asylum rule, Biden became the second president. Promise broken,” he tweeted.

House Republicans’ asylum plan

The GOP bill passed by the House this week goes much further than Biden’s rule, but it has little chance of becoming law given that the Democrat-led Senate has declared it dead on arrival.

Still, it outlines GOP priorities when it comes to the border, and while it covers security issues and other forms of migration, it is heavily focused on asylum.

The bill was timed to coincide with the end of Title 42, with Republican lawmakers arguing the legislation preserved asylum rights for the truly deserving. 

Rep. Chip Roy (R-Texas) billed it as “provid[ing] for a path for asylum while making sure we don’t create a magnet for the abuse of migrants in the false name of compassion.” 

Immigration advocates assess, react

The confluence of the two measures has been overwhelming for some immigration advocates.

“These are all human beings, most of which are fleeing persecution. And they’re just looked at as numbers and optics for the news cycle and for the election cycle,” said Jennifer Quigley, senior director at government affairs for Human Rights First.

“It’s a complete dehumanization of the most vulnerable people for scoring political points and viewing the border as something that has to be managed as opposed to [the fact that] people are going to come. The world has seen the largest displacement crisis in recorded history. I don’t care how horrible you make this process for them. They’re going to come as long as what is here is not as horrible as what they left.”

The Biden administration has defended its new rule, arguing that it’s been paired with other lawful pathways for migrants to come to the U.S.

Still, those pathways have their own limitations. Only citizens from Cuba, Venezuela, Nicaragua and Haiti can apply for temporary entrance to the U.S. But to qualify they must secure a U.S.-based financial sponsor and already have a valid passport.

“W​e believe that rule is well within our statutory authority. And we have tied it to an expansion, a historic expansion … of our lawful pathways for people to come directly to the United States at the end of the day,” Blas Nuñez-Neto, chief operating officer at U.S. Customs and Border Protection, said on a call Friday with reporters.

Loweree said that program, combined with an increase in visas and the use of an app to book appointments at the border, will collectively mean pathways to the U.S. for hundreds of thousands of people, gains that will be countered by the new asylum regulation.

“The regulation that has come into effect, though, steers the other way. It will cut a lot of people out, a lot of people who should otherwise qualify for protection, for reasons that are largely arbitrary,” he said, adding that many other countries do not have meaningful asylum systems in place.

But Quigley said the programs rolled out for Venezuelans, Cubans, Nicaraguans and Haitians aren’t enough, especially because many in those countries either won’t be able to secure a financial sponsor or may not have a valid passport, particularly those who have already fled to another country.

“The problem is that they were crafted in a way that the most vulnerable were never going to qualify for them,” she said.