Fact Check

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.

Published May 11, 2023

Border Patrol Vehicle near U.S. Mexico Border. (AH829/Wikimedia Commons)
Border Patrol Vehicle near U.S. Mexico Border. (Image courtesy of AH829/Wikimedia Commons)
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.

On May 11, 2023, Title 42, a controversial pandemic-related immigration policy implemented in 2020 by then-U.S. President Donald Trump, was set to expire. In turn, President Joe Biden was set to implement a new set of immigration restrictions that itself was controversial, angering many immigration advocates who likened the new policy to another one enacted under Trump. 

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." 

That rule was challenged by immigration nonprofits and asylum-seekers, and in June 2020, not quite a year after it was implemented, a federal judge ruled that it was illegal.

Biden himself decried the rule during the 2020 presidential debates, saying: "This is the first President in the history of the United States of America that anybody seeking asylum has to do it in another country. That's never happened before in America. [...] You come to the United States and you make your case. That's how you seek asylum, based on the following premise, why I deserve it under American law. They're sitting in squalor on the other side of the river."

The Biden administration denies a similarity between the so-called transit ban and the Trump-era third-country asylum rule, claiming the new restrictions have broader exemptions and are paired with expanded channels for migrants to legally enter the U.S.

In a May 11 press briefing, Homeland Security Secretary Alejandro Mayorkas addressed criticism of this policy, particularly regarding how it would impact Black African and Caribbean asylum seekers. A reporter asked, "The lifting of Title 42 suppresses Black asylum seekers who are required to ask for asylum in countries they transit through. Many of those countries are too dangerous for Black migrants to request asylum [...] What will you do to safeguard some of these Black migrants [...] who are transiting through countries where they cannot ask for asylum?"

Mayorkas responded that Biden had "expanded lawful pathways" for migrants to enter the U.S. and aimed to cut smugglers out of the migration process. He discussed the new CBP One application that allows migrants to set up appointments from their phones at a port of entry. He said they admitted 740 people through the app per day, a majority of whom were Haitian, and were setting up a hundred or more regional processing centers for asylum seekers. 

According to The New York Times, immigration advocates say such a policy amounts to a near prohibition of asylum-seekers at the southern border, particularly because applying for asylum in countries like Mexico takes months, if not years, as the government's system is backed up. And most asylum-seekers report feeling unsafe in the countries they transit through. Even the CBP One application, the Times reported, is glitchy, and the likelihood of getting an appointment through it is compared by some to winning the lottery. The Times noted that only migrants in northern Mexico, near the U.S. border, or in Mexico City are eligible to use it and some have spent months trying to make it work, to no avail. 

The Biden administration indeed implemented a law that bears similarities to one the Trump administration briefly implemented — until it was blocked by federal courts in 2020 — though they claim it comes with broader exemptions. It will likely face the same legal challenges that the Trump rule faced. Since such a policy was indeed on the books as of May 11, 2023, and is facing widespread opposition, we rate this claim as "True." 

Sources

"ACLU Comment on Biden's Asylum Ban." American Civil Liberties Union, https://www.aclu.org/press-releases/aclu-comment-on-bidens-asylum-ban. Accessed 11 May 2023.

Chappell, Bill. "Trump Administration Implementing 'Safe 3rd Country' Rule On Migrants Seeking Asylum." NPR, 15 July 2019. NPR, https://www.npr.org/2019/07/15/741769333/u-s-sets-new-asylum-rule-telling-potential-refugees-to-apply-elsewhere.

"Federal Court Invalidates Trump Administration Asylum Restrictions." NBC News, 1 July 2020, https://www.nbcnews.com/news/us-news/judge-overturns-trump-border-rule-requiring-immigrants-first-claim-asylum-n1232629.

"How Title 42's Expiration Will Reshape Immigration Policy at the U.S.-Mexico Border." CBS News, 11 May 2023, https://www.cbsnews.com/news/what-is-title-42-policy-immigration-what-happens-ending-expiration/.

"In Major Reversal, Biden Resurrects Trump Border Policy Ahead Of Title 42 Repeal." The Daily Wire, 10 May 2023, https://www.dailywire.com/news/in-major-reversal-biden-resurrects-trump-border-policy-ahead-of-title-42-repeal.

Kitroeff, Natalie, et al. "Who Gets In? A Guide to America's Chaotic Border Rules." The New York Times, 11 May 2023. NYTimes.com, https://www.nytimes.com/interactive/2023/05/11/world/americas/mexico-border-routes.html.

"Press Briefing by Press Secretary Karine Jean-Pierre and Secretary Mayorkas." www.youtube.com, https://www.youtube.com/watch?v=exGQDp6BtoE. Accessed 11 May 2023.

"Public Inspection: Circumvention of Lawful Pathways." Federal Register, https://www.federalregister.gov/public-inspection/2023-10146/circumvention-of-lawful-pathways. Accessed 11 May 2023.

Sullivan, Eileen, and Michael D. Shear. "Biden Administration Considers Migrant Restrictions Similar to Trump Policies." The New York Times, 1 Dec. 2022. NYTimes.com, https://www.nytimes.com/2022/12/01/us/politics/biden-immigration-asylum-restrictions.html.

"Title 42: What Happens When the Trump Immigration Rule Ends?" BBC News, 8 May 2023. www.bbc.com, https://www.bbc.com/news/world-us-canada-65477653.

"Trump v Biden: The Final Debate." www.youtube.com, https://www.youtube.com/watch?v=yGPfKkjDIts. Accessed 11 May 2023.

"U.S. Finalizes Asylum Restriction to Ramp up Border Deportations Once Title 42 Lapses." CBS News, 10 May 2023, https://www.cbsnews.com/news/us-asylum-restriction-title-42-expires-border-deportations/. Accessed 11 May 2023.

Nur Nasreen Ibrahim is a reporter with experience working in television, international news coverage, fact checking, and creative writing.