If you believe the reporting of the legacy media, the Biden administration’s newly proposed 153-page asylum rule is a resurgence of the Trump administration policies they loathed.
The Washington Post describes the new rule as the administration’s “most restrictive border control measures to date,” and The New York Times claims the new policy “could disqualify most migrants from being able to seek asylum at the southern U.S. border.”
At the same time, almost all open borders advocacy groups are criticizing the new rule, which they claim would bar aliens from entering the U.S. if they passed through multiple counties on their way to the U.S. without seeking humanitarian relief. (RELATED: EXCLUSIVE: There’s A Massive Loophole In Biden’s Immigration Parole Program)
These groups are now equating this rule to the Trump administration’s “third country transit bar” rule that barred asylum shopping. It’s an easy comparison but a wrong one. Here’s why.
Like most immigration policies, the devil is in the details and in the enforcement mechanism they require. The Trump administration’s 2019 rule barred all illegals apprehended at the southern border from claiming asylum with three narrow and commonsense exceptions. First, aliens were allowed to make an asylum claim in the U.S. if they first sought asylum in a country they passed through but were denied.
Second, an alien was exempt from the rule if he was “severely trafficked.” And third, the alien was allowed to make an asylum claim if he traveled only through countries that did not participate in the same international humanitarian agreements as the U.S. did back in the 1950s and 1960s. Unfortunately for the American people, the Biden administration’s proposed rule does not maintain these limited exceptions and instead continues this administration’s legacy of perpetuating human trafficking and asylum fraud. (RELATED: Biden’s New Border Admission Policy Allows Haitian, Cuban Migrants To Receive Medicaid, Food Stamps, Cash Handouts
One of the main problems with this rule is that it will still enable illegal aliens to clog the immigration court system with baseless asylum claims. Unlike the Trump era rule, the proposed rule uses the “rebuttable presumption against asylum eligibility” standard for illegal aliens apprehended at the border, which is not a true bar to claiming asylum.
Although this new standard may appear more strict than the current practice, it is a watered-down policy compared to the Trump administration’s rule, which only allowed aliens who fell within the narrow exceptions to make an asylum claim.
Fewer than 15% of illegal aliens apprehended at the border qualify for asylum, and obtaining humanitarian relief is not the end goal for the vast majority of these illegal aliens. Instead, being released into American communities is what they are really trying to achieve, and nothing in this rule stops that from happening.
Additionally, the proposed rule is loaded up with exceptions beyond the commonsense ones from the Trump administration’s rule that render the “asylum bar” nonexistent. For example, it will have no impact on the 30,000 illegal aliens per month from Venezuela, Cuba, Haiti and Nicaragua who the Department of Homeland Security (DHS) is going to parole into the country unlawfully.
This means that 360,000 illegal aliens will be allowed into American communities each year unless the federal courts block this abuse of the narrow parole authority. Also immune from the rule are the tens of thousands of illegal aliens the administration will waive through the ports of entry if they schedule an “appointment” through the Customs and Border Protection One app.
But those are not the only exceptions. The rule also exempts aliens who claim the CBP One app was “not possible to access or use.” This vague standard is rife for exploitation and will no doubt be badly abused.
The rule also exempts aliens who have “other exceptionally compelling circumstances,” as defined by DHS. And lastly, the rule fully exempts unaccompanied alien children and family units, including in situations where the family members are proven ineligible for asylum. That’s at least 700,000 aliens per year.
The exceptions for families and unaccompanied minors are similar to the exemptions the Biden administration applied to Title 42, which allowed these populations into American communities instead of immediately turning them away at the border. The result of that carve out was the facilitation of record numbers of vulnerable migrant children and families who were trafficked to the border.
Furthermore, history tells us that the Biden administration will fail to thoroughly enforce compliance with the rule, which will create even more issues. Just look at the extremely limited way the administration applied the “Remain in Mexico” policy once the courts ordered them to resume it. The number of aliens returned to Mexico was so low it is laughable to say it was a good-faith effort to comply with a federal court order.
This rule demonstrates that the Biden administration is clearly reeling from the public fallout of more than 251,000 illegal aliens attempting to cross the border unlawfully in December. The American people deserve real solutions to secure the border instead of creative — and unlawful — mechanisms to further propel the mass release of illegal aliens into American communities.
The Biden administration’s new border security plan issued on Jan. 5 and this new rule are border enforcement red herrings. While the open border Left will protest the new proposal, the American people should not fall for this border deception.
Chad Wolf is the former Acting Secretary of the Department of Homeland Security and Executive Director and Chair of the Center for Homeland Security & Immigration at the America First Policy Institute.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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