A new border policy looks a lot like Title 42.
A new border policy looks a lot like Title 42. Photo: Getty Images.

Biden’s new border policy gets heavy criticism, sparks comparisons to Trump-era Title 42

The rule published Thursday will reject asylum to migrants who didn’t first seek protection from the country they crossed through to enter the U.S.


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President Joe Biden has made good on several campaign promises regarding diversity in federal courts, alleviating prices for many Americans, and job growth. 

Unfortunately, this cannot be said about the border and immigration altogether. 

The same day Biden delivered a heartwarming and unifying message in Warsaw, Poland on Tuesday, Feb. 21 that expressed support for refugees escaping the Russia and Ukraine conflict, his administration also announced its toughest immigration policy yet that would reject migrants fleeing persecution and economic disaster. 

For many months, the Biden Administration has been heavily criticized for their actions or lack thereof in regards to the border and the influx of illegal crossings. It has been further exacerbated by the antics and political stunts from several GOP leaders. 

In response to Biden’s nonresponse, GOP Governors Greg Abbott (TX), Ron DeSantis (FL) and former Arizona governor Doug Ducey took matters into their own hands and began transporting migrants from their respective states to Democratic hubs up north, including Chicago, D.C., New York, Philly, and the doorsteps of Vice President Kamala Harris’ residence. 

As the President deals with that and the never-ending legal battles in the fight to protect the future and survival of the Deferred Action for Childhood Arrivals program (DACA), he has also been heavily pressured by many Democratic lawmakers, advocates, and immigration groups to end his predecessor’s immigration and COVID-19 policy, Title-42. 

The policy first introduced and enacted in March 2020 during the throes of the COVID-19 pandemic, was effectively a “health emergency order.” It was also a way of keeping instances of illegal immigration low, using COVID-19 as a front for a policy that allows border officials to reject any migrant at the southern border seeking asylum.

Since then, the policy has been put back in place, extended, and fought over in court. Thus far, GOP officials and judges have done enough to keep the policy in place. 

Immigration advocates have sued to end Title 42, arguing that it goes against American and international obligations to tens of thousands fleeing their home country to escape economic crisis, danger, and escape persecution. 

They also stated that the policy is outdated as coronavirus treatments improve, and the severity of the situation altogether is much improved. Title 42 is slated to end on May 11. 

Now, more than two-years after taking office and less than 90 days away from the end of Title 42, Biden has a response to the border problem that might satisfy Republicans craving to reject migrants. 

But for the many Democratic lawmakers, advocates, and immigration groups that advocated for the end of Title 42, the new rule will be like an illusion — a policy deceptively appearing to be a win and disguised as a Biden-era Title 42. 

On Tuesday, Feb. 21, the Departments of Homeland Security and Justice announced the new proposed rule that will reject asylum to migrants if they cross the border illegally or fail to first apply for protections in another country.

The same way Trump used COVID-19 as a way of keeping illegal immigration low and as a front, Biden is doing the same by adding several obstacles of his own. 

In addition to having to first apply for projections in another country, migrants also have to go through a mobile app, known as CBP One, to schedule an appointment with U.S. authorities to review their application. The app has been plagued with glitches and overwhelming demand that’s made it virtually obsolete. 

Previewed by Biden in January, following a 30-day public comment period, the rule will be officially implemented upon the May 11 expiration date of Title 42, according to a senior administration official who briefed reporters and will remain in place for two years. 

The White House formally published the policy Thursday morning, Feb. 23, but the backlash was immediate on Tuesday after it was announced. 

Immigrant advocates have referred to the policy as the “transit ban” or the “asylum ban” and is the White House’s toughest border crisis measure. Advocates and Democrats accused White House officials of continuing the Trump-like approach to the border issues — one of his promises to end when he ran in 2020. 

Advocates like Jane Bentrott, counsel at Justice Action Center, an immigrant rights nonprofit, say the policy will only hurt migrants, arguing that it will force them to return to rather life-threatening situations. 

“The Biden administration’s proposed rule would send asylum seekers back to danger, separate families, and cost lives, as human rights advocates have been asserting for weeks,” Bentrott, counsel at Justice Action Center, told the New York Times. 

“It is in direct contravention of President Biden’s campaign promises to reverse Trump’s racist, xenophobic immigration policies, and give all folks seeking safety a fair shot at asylum,” she continued.

And several Democratic lawmakers both in the House and Senate made their displeasure with Biden clear following its announcement Tuesday. 

"We are deeply disappointed that the Administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation," Senators Bob Menendez (NJ), Cory Booker (NJ), Ben Ray Lujan, (NM) and Alex Padilla (California) said in a statement. 

"In reality, they are pursuing a legal pathway in the United States. We have an obligation to protect vulnerable migrants under domestic and international law and should not leave vulnerable migrants stranded in countries unable to protect them,” they added.

Administration officials in a press call with reporters on Tuesday defended the administration’s rule and rejected that the policy was similar to the Trump transit ban, saying it was not a “categorical ban” on asylum seekers. 

But rather, according to officials on the call, it had expanded “existing lawful pathways” through the parole programs and said that the rule was not meant to intentionally hurt people from seeking asylum but to help ensure order at the southern border. 

But both things can be true. 

They also made sure to use that time to call out Congress for their respective inactions in regards to putting together a bipartisan and comprehensive immigration reform bill that has been needed for more than four decades. 

“To be clear, this was not our first preference or even our second. From day one, President Biden has urged Congress to pass comprehensive immigration reform and border security measures to ensure orderly, safe and humane processing of migrants at our border,” a senior administration official said.


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