www.snopes.com/fact-check/biden-transit-ban-asylum-seekers-trump-title-42/Is Biden’s New ‘Transit Ban’ on Asylum-Seekers Similar to Trump-Era Policy?
As Title 42, the pandemic public health rule, went away, another set of immigration restrictions on asylum-seekers came into play.
Claim:
As Trump-era public health order Title 42 expired on May 11, 2023, the Biden administration implemented another restrictive policy pertaining to asylum-seekers. Similar to a Trump-era rule, this one disqualifies migrants from U.S. protection if they fail to seek refuge in a third country, like Mexico, before crossing the U.S. southern border.
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Conservative media outlet The Daily Wire reported, "The Biden administration has brought back a Trump-era immigration rule the day before Title 42 is scheduled to sunset and encourage a wave of illegal immigration into the U.S."
It is true that the Biden administration implemented a restrictive immigration rule at the same time Title 42 expired, and that it bears similarities to a policy implemented by the Trump administration.
Title 42 — the rule that has expired — was put in place in March 2020, during the early days of the COVID-19 pandemic. It restricted asylum-seekers from entering the country, ostensibly in order to stop the spread of COVID-19. Title 42 gave U.S. authorities emergency powers to stop the spread of disease and empowered them to use the pandemic as justification to expel migrants who were attempting to cross the border from Mexico and seek humanitarian asylum.
The Biden administration kept Title 42 in place despite the fact that it was controversial, citing continuing public health concerns. Then, with its expiration imminent in May 2023, the administration braced for an influx of migrants at the border, reportedly expecting the number of arrivals to rise to more than 10,000 per day during that month alone. Under the new policy, which The New York Times reported was under consideration back in December 2022, migrants are prohibited from seeking refuge in the U.S. unless they can prove they were first denied safe harbor in another country, like Mexico.
CBS News reported on the finalized guidelines for this policy just a few days before the end of Title 42, and noted that they were posted on the Federal Register just 48 hours before its expiration.
We looked up the guidelines on the Federal Register and found the current copy is still an "unpublished Rule by the Homeland Security Department and the Executive Office for Immigration Review." The official published version will be available on May 16, 2023. The unpublished version online states (emphasis, ours):
The rule encourages migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in another country through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. The rule does so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would apply only to those who enter at the southwest land border or adjacent coastal borders during a limited, specified date range, the number of migrants expected to travel without authorization to the United States would be expected to increase significantly, to a level that risks undermining the Departments' continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law [...].
Critics have called this requirement a "transit ban." The American Civil Liberties Union (ACLU) issued a statement against the policy, comparing its justification to that of the Trump-era rule known as the "third-country asylum rule":
Yet the proposed rule relies heavily on the Trump administration's flawed reasoning that asylum seekers who do not first try and fail to seek asylum elsewhere are less likely to have meritorious protection claims. There are myriad reasons why asylum seekers with meritorious claims reasonably do not apply for protection in common transit countries—including that they are unsafe and/or have inadequate or overwhelmed asylum systems [...]
What was the third-country asylum rule? In July 2019, the Trump administration implemented a rule that stated: "an alien who enters or attempts to enter the United States across the southern border after failing to apply for protection in a third country outside the alien's country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States is ineligible for asylum."
