U.S. to limit asylum to migrants who pass through a 3rd nation

The measure, while stopping short of a total ban, imposes highly severe limitations on asylum for any nationality except Mexicans, who don’t have to travel through a third country to reach the U.S.

The Biden administration said Tuesday that it will generally deny asylum to migrants who show up at the U.S. southern border without first seeking protection in a country they passed through, mirroring an attempt by the Trump administration that never took effect because it was blocked in court.

The measure, while stopping short of a total ban, imposes highly severe limitations on asylum for any nationality except Mexicans, who don’t have to travel through a third country to reach the U.S.

The measure won’t take effect immediately and is almost certain to face legal challenges. President Donald Trump pursued a similar ban in 2019 but a federal appeals court prevented it from taking effect. It will also be subject to possible revisions after a 30-day period for public comment.

Administration officials expect the rule will take effect when a pandemic-era rule that denies asylum on grounds of preventing the spread of COVID-19 ends. That rule, known as Title 42 authority, is set to expire May 11 but has been delayed twice by legal challenges from Republican-led states.

The Homeland Security and Justice Departments argued that surging numbers of migrants left them with little choice. They anticipate illegal crossings to climb to between 11,000 and 13,000 a day if no action is taken after Title 42 ends, up from from an already extraordinarily high daily average of 6,500 in the government's fiscal year that ended Sept. 30.

Title 42 was scheduled to end in late December until the Supreme Court ordered that it stay in effect. Administration officials said daily crossings climbed to 7,700 a day in early November and to 8,600 by mid-December as anticipation spread among migrants and smugglers that the rule was about to end.

The proposed rule establishes “a rebuttable presumption of asylum ineligibility” for anyone who passes through another country to reach the U.S. border with Mexico without first seeking protection there, according to a notice in the Federal Register. Exceptions will be made for people with an “acute medical emergency,” “imminent and extreme threat” of violent crimes such as murder, rape or kidnapping, being a victim of human trafficking or “other extremely compelling circumstances.”