Biden Proposes a Trump-Era Reform to Deter Illegal Border Crossings – But This Time It’s Not Likely to Work

By Elizabeth Jacobs on January 6, 2023

The Biden administration announced on January 5, 2023, that it will begin to implement a handful of border-related reforms to prepare for the end of its use of Title 42. Included in the strategy was an announcement that the U.S. Department of Homeland Security (DHS) and Department of Justice (DOJ) will be proposing a new regulation to address asylum claims at the border. One of the more interesting details, however, is that it will include a provision that is nearly identical to a regulation that was issued under the Trump administration and shunned by Biden during his presidential campaign: the third-country transit rule.

The third-country transit rule revised DHS and DOJ regulations to add a new mandatory bar to eligibility for asylum for an alien who entered or attempted to enter the United States across the southern border after transiting through at least one country outside the alien’s home country en route to the United States without attempting to receive protection there.1 DHS and DOJ jointly issued the reform as an interim final rule on July 16, 2019, in order to address the emergency on the southern border and later finalized the regulation in December 2020.

The rule was specifically issued to address the large number of meritless asylum claims that illegal border-crossers were filing with the departments in 2019. DHS and DOJ explained that the surge in asylum claims put extraordinary strains on the immigration system, undermined the humanitarian purposes of asylum by flooding the system with fraud, and exacerbated the humanitarian crisis of human smuggling. (These conditions all continue in even greater degrees today.)

Now, compare the third-country transit rule with the Biden administration’s new proposal:

[In] response to the unprecedented surge in migration across the hemisphere and to reduce encounters at our border, DHS and DOJ intend to issue a proposed rule to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified. [Emphasis added.]

While the exact text of this proposal has not yet been made public, the Biden administration appears to be reviving the third-country transit policy that Democrats shunned when it was implemented under the Trump administration. Indeed, Secretary Mayorkas has repeatedly blamed the Trump administration’s alleged “dismantling of asylum” for the troubles the administration has faced in managing the border, partly in reference to the third-country transit rule.

The third country transit rule did not live long. The rule was subject to numerous legal challenges, enjoined, and ultimately vacated by a D.C. federal district court judge.

Biden’s “Deterrence” Strategy Is Unlikely To Be Effective

There are important differences to the Trump administration’s policy and the Biden administration’s forthcoming proposal. First, the third-country transit rule sought to impose an actual bar to asylum. The Biden administration’s forthcoming regulation, on the other hand, will instead impose a “rebuttable presumption of asylum ineligibility”. This means that aliens who make a credible fear claim could present evidence to overcome this presumption, thus giving asylum officers more issues to analyze in already long credible fear interviews.

Second (and this is important), the Biden administration’s border strategy says nothing at all about detention. While the administration claims to be “expanding expedited removal” for those without a legal basis to enter or remain in the country, as my colleague Andrew R. Arthur has repeatedly explained, expedited removal does not work without detention — even if aliens are supposedly barred from asylum.

That is because asylum is not the only form of protection that aliens can receive after they make a credible fear claim to a DHS officer. An alien could be ineligible for asylum, but nevertheless be allowed to remain in the United States because an asylum officer determines that the alien may be eligible for statutory withholding of removal or protections under the Convention Against Torture (CAT). Credible fear applicants do not need to explicitly request relief under these forms of protection to receive a positive credible fear determination — asylum officers can (and often do) make this determination on their own after hearing an alien’s testimony.

Additionally, the Biden administration’s new asylum processing rule, which was published in March 2022, now allows asylum officers to parole aliens who make credible fear claims out of detention and into the interior. The Biden administration’s January 5, 2022, announcement, however, says nothing about whether aliens who receive parole under these circumstances would be subject to the 30,000 parolee-a-month cap. My guess is that they will not be.

Unless the Biden administration commits to closing loopholes in the asylum system and either reviving the Migrant Protection Protocols (MPP, commonly known as the “Remain in Mexico” program) or resuming mandatory detention (as is required by law) for aliens who illegally cross the border, its strategy is unlikely to have any of the deterrence effects it’s promising. The near-guarantee of release into the United States has been a primary pull factor for illegal immigration since January 2021 and will continue to be unless the administration makes these necessary changes to its border policies.

End Note

1 The bar contained three exceptions to its applicability: 1) aliens who demonstrated that they applied for protection from persecution or torture in at least one of the countries through which they transited through en route to the United States (other than their home country), and that they received a final judgement denying them protection in such country; 2) aliens who could demonstrate that they are victims of human trafficking; and 3) aliens who have transited en route to the United States through only a country or countries that are not parties to the 1951 Convention on the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.