Throughout Donald Trump’s presidency, his longest-serving senior aide, Stephen Miller, fought intensely to bring America’s immigration system to a halt. Miller pushed for and crafted policies that separated migrant families (many of which are yet to be reunited), reduced refugee admissions to levels not seen in many years, and forced people to seek asylum in other countries instead of in the United States. With Trump’s departure, and Biden’s incoming administration’s rhetoric on migration, advocates were hopeful that the Miller era had ended. Last week, though, the Biden administration proposed new rules for asylum-seekers that would have fulfilled some of Miller’s wildest dreams.
The proposed asylum rule is quite complicated. In short, the rule requires adults who want to claim asylum to use a glitchy CBP One app to secure an appointment and to request (and be denied) asylum in an intermediate country before they arrive at a port of entry in the United States. These requirements place asylum-seekers in the unenviable position of either waiting for their appointments in the country they are fleeing, or, most likely, waiting in Mexico, a country that has been unable to protect migrants who have been stuck there waiting to cross to the United States while the Trump-era Title 42 policy has remained in place.
It’s only fair to note that the proposed rule allows exceptions for certain people who enter between ports of entry or who don’t use the CBP One app to claim asylum. However, in practice, it is unlikely that most asylum-seekers would qualify for these.
The Biden administration claims two things. First, that the proposed rule should be read in the context that DHS has established a program to accept 30,000 Cuban, Haitian, Nicaraguan, and Venezuelan migrants a month as parolees, as long as they have a U.S.-based sponsor. Moreover, that the new rule is meant to be temporary (24 months) to alleviate the increased demand for asylum they anticipate as a result of Title 42—a measure which has kept the border closed to most asylum-seekers since 2021—ending in May.
While the recent parole program is good, it is also insufficient. First, not all asylum-seekers are from Cuba, Haiti, Nicaragua, or Venezuela. In fact, most are not. Second, not even all citizens of those countries are eligible for the sponsorship program because they don’t all have sponsors, or the sponsors they do have might not qualify because they lack the financial resources to support them. So, it is not the case that the parole program would serve as an adequate replacement for asylum-seekers, even for citizens of those countries. Moreover, it is unlikely that DHS has the capacity to issue 30,000 paroles a month. It took great effort for the agency to issue 85,000 such paroles over the last year to Ukrainian refugees who weren’t facing the same backlash as migrants in the new parole program. Finally, the program is being challenged in court by a coalition of GOP-led states. It is an open question whether it will withstand the challenge.
More important than those practical objections is that the notion that a targeted and specific parole program can replace asylum is inimical to the very idea of asylum. As many Democrats and human rights organizations have articulated since the proposed asylum rule was published in the Federal Register, under U.S. and international law people have a fundamental right to seek asylum. This means that the government must do everything in its power to ensure people can seek asylum’s protection. No ifs, ands, or buts.
However, through this proposed rule, the Biden administration has shown that they do not believe asylum access to be a human right. Rather, the government is putting asylum access on a balance with state capacity and, arguably, politics. By extension, this analysis of asylum allows for the return of Stephen Miller’s policies. Most notably, this new proposal is virtually indistinguishable from a transit ban Miller proposed during his tenure at the White House, which at one point was considered a red line for even the hardline Trump administration.
This leads to the administration’s second claim about the temporary nature of the rule. Even if this rule were to be enacted for only two years, it would still mean avoidable death and suffering during that time. Moreover, 24 months is long enough to establish a new normal that will then become permanent. Title 42 is instructive. Before that rule was implemented, the idea of closing the border to asylum-seekers was unthinkable. Now, lifting the rule is treated with derision and fear by Republicans and Democrats alike. For the purposes of that debate, it has become irrelevant that lifting Title 42 is simply returning the U.S. to border policy as it existed under Trump. In fact, the opposition to the lifting of Title 42 helps explain at least some of the motivation behind the proposed new asylum rule.
It is hard to envision the rule sunsetting. Even assuming there is a future Democratic administration, extinguishing the rule will be painted and understood as unreasonable policy. As Milton Friedman admonished: “Nothing is as permanent as a temporary government program.”
The new asylum proposal is not to be framed as realpolitik, as some have done. It is a dangerous policy that, if implemented, will create an even more dangerous precedent. If a Democratic administration can comfortably and single-handedly end asylum at the border, what will Miller or his acolytes do if they regain control of government?