Updated February 24, 2023 at 5:48 PM ET
The Biden administration unveiled sharp new restrictions on who can seek asylum at the U.S.-Mexico border this week.
It's the latest move in a larger crackdown aimed at discouraging migrants from crossing the border illegally — one the White House says is working.
But immigrant advocates say it's a betrayal of President Biden's promises to rebuild the asylum system at the border.
"My main reaction is disappointment," says Andrea Flores, a former member of Biden's National Security Council. "It's far more punitive than I anticipated would come from this administration, and this immigration team."
Flores and other former administration officials say a vigorous debate has been playing out since the days of the presidential transition. Biden had pledged to restore asylum protections for the most vulnerable, while also trying to deter migrants from making the dangerous journey through Mexico and crossing the border illegally.
When Biden took office, he quickly signed a flurry of executive orders rolling back some of former President Trump's harshest immigration policies.
"In the beginning, it felt like we were all rowing in the same direction," says Flores, who served as the director of border management on Biden's National Security Council. "One of our clear goals was how do you offer access to asylum in an orderly way."
But as migrant apprehensions at the border rose to record levels, Flores says, the debate shifted. Republican criticism of the administration's border policies grew louder. And the president's advisors in the White House grew increasingly obsessed with getting the border numbers down, she says.
"They were considering many of the tools that the Trump administration used and that Democrats had really uniformly condemned," Flores says. "And that was very unsettling to me."
Flores quit after less than a year, and is now chief counsel for U.S. Sen. Robert Menendez, D-N.J. She was not surprised last month when Biden announced a new set of border enforcement policies.
Biden's plan combines carrots and sticks
"We can't stop people from making the journey," Biden said in remarks at the White House on Jan. 5. "But we can require them to come here — that they come here in an orderly way under U.S. law."
Biden announced a mix of incentives and disincentives — in other words, carrots and sticks — intended to discourage migrants from crossing the border illegally.
The new measures include a legal pathway for up to 30,000 migrants per month from Cuba, Haiti, Nicaragua and Venezuela — if they qualify. At the same time, the administration announced it would begin to quickly expel migrants from those four countries under the pandemic restrictions known as Title 42, if they crossed illegally.
The White House credits those measures for a sharp decline in the number of migrant apprehensions, at least so far. Immigration authorities encountered migrants at the U.S.-Mexico border more than 250,000 times in December 2022, the highest monthly total ever. But this January, those numbers dropped sharply — to their lowest level in almost two years.
This week, the administration unveiled its biggest stick yet: A temporary rule that would make it much harder for migrants to get asylum if they cross the border into the U.S. illegally, after passing through Mexico or any other country without seeking protection there first.
Preparing for the end of Title 42
The White House says the proposed rule is necessary to manage what officials call a temporary "surge" in migration levels that they expect when Title 42 restrictions are lifted.
For years, immigration authorities have used that public health authority as a de facto tool for managing the border. Now those authorities say they are preparing for what will happen if Title 42 ends on May 11, as currently planned.
"To be clear, this was not our first preference or even our second," said a senior administration official during a briefing with reporters on Tuesday. "It is intended to fill the void that Congress has left by taking no action, and to help us ensure secure and humane processing of migrants when Title 42 does lift.
"This administration just won't allow mass chaos and disorder of the border because of Congress's failure to act," said the official, who spoke on condition of anonymity under ground rules set by the administration.
But immigrant advocates are furious.
New enforcement measures prompt an outcry
"Not only is it a clear contradiction of U.S. law and international agreements, it violates President Biden's own promises to restore asylum," said Krish O'Mara Vignarajah, the CEO of Lutheran Immigration and Refugee Service, on a call with reporters Wednesday.
"This is very nearly a carbon copy of the Trump asylum ban that was blocked by the courts just a few years ago," Vignarajah said.
That Trump-era policy would have turned back nearly all migrants who crossed through Mexico on their way to the U.S. Many Democrats — including then-candidate Biden — were strongly opposed at the time.
"This is the first time ever you've had to seek asylum in a third country," Biden said in an interview with the National Association of Black Journalists in 2020. "It's outrageous. It's outrageous. It's wrong."
The Biden administration insists the new asylum rule is very different from Trump's because it has exceptions for the most vulnerable migrants, and because it's coupled with new legal pathways for certain migrants who can qualify.
Changing migration patterns
The administration is also grappling with a big shift in where migrants are coming from.
"The facts on the ground have changed," says Angela Kelley, a former immigration advisor at the Department of Homeland Security.
"We have four failed nation states in our hemisphere between Cuba, Haiti, Nicaragua, Venezuela. That is producing a different kind of migration flow," says Kelley, who is now with the American Immigration Lawyers Association.
That's an argument the White House has been making, too. Administration officials say the job has been made more difficult by Republican attorneys general in states around the country, who have sued to block many of the Biden administration's immigration policies, as well as a lack of cooperation from Congress.
"That has required us to tailor our approach, but not change our principles," said a senior administration official who requested anonymity because they were not authorized to discuss internal deliberations.
Still, some outside observers see a shift toward tougher enforcement.
"The administration has come to the realization that it really has to rethink where it's been on handling the border," says Doris Meissner, a top immigration official in the Clinton administration who's now a senior fellow at the nonpartisan Migration Policy Institute.
Meissner thinks the Biden administration is trying to reestablish a kind of balance at the border.
"There will be ways to come to the country legally, but there also will be real consequences for coming in ways that are not according to those new rules," Meissner says. "There has to be orderliness. There cannot be chaos at the border."
It's the same language the Biden administration has been using all along. But what those words mean for migrants has changed dramatically in two years.
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