Facing a surge of migrants at the US-Mexico border and on the heels of a crisis, White House and Department of Homeland Security officials began discussing more restrictive policies that would keep migrants from coming to the US.
It was the summer of 2021, just months after a surge of unaccompanied migrant children caught the administration flat-footed and put into sharp focus the immigration challenges ahead for President Joe Biden.
At the time, White House lawyers knocked down one of the ideas: Forcing asylum seekers to find refuge in countries on their way to the US or be turned back. They said it would likely be blocked by the courts, according to two sources familiar with the discussions.
But nearly two years later, the administration announced a policy like the one floated among officials before – fielding fierce criticism from allies who argued the effort had echoes of the Trump era and crystallizing the shift in Biden’s approach to the border, a political vulnerability going into the 2024 presidential election.
“As a matter of good governance, we take all legal considerations into account before putting any policy forward, and the recent proposed rule reflects those considerations,” an administration official said in a statement.
One source close to the White House described the latest policy announcement, which largely bars migrants from seeking asylum in the US if they passed through another country, as “putting lipstick on a pig.”
The aftermath of the coronavirus pandemic in the Western Hemisphere put the Biden administration in a difficult position from the outset, as migrants began fleeing deteriorating conditions back home in record numbers. Proposals to reform the immigration system fell by the wayside as officials grappled with a record number of migrants arriving at the US southern border, sources told CNN.
But policy ideas, like the new asylum rule, that may have been hard to stomach before are now taking shape as the administration tries to stave off another crisis and Republican attacks.
“They went from not wanting to do tough stuff to realizing they have no choice,” one source familiar with discussions told CNN.
CNN reached out to the White House and Department of Homeland Security for comment.
Some Biden allies have likened the new asylum rule, which is likely to take effect in May, to a Trump-era policy that sought to bar migrants from seeking asylum at the US-Mexico border.
Biden administration officials have rejected the comparison to the Trump administration, saying that it’s not a categorical ban on asylum and emphasizing efforts to expand access to legal pathways to the US, including a recently launched parole program for certain nationalities.
“This was not our first preference or even our second,” an administration official previously told reporters, stressing efforts to open legal pathways to the US, including use of an app, and underscoring the onus is on Congress to pass reform.
The shifting migration patterns – which have put a strain on federal resources – have in part prompted the administration to consider new measures, especially as border authorities have encountered an increasing number of Cubans, Venezuelans and Nicaraguans. The US is largely barred from deporting migrants from those nationalities back to their home countries because of strained diplomatic relations.
The US has since begun sending migrants from Cuba, Venezuela and Nicaragua to Mexico under a Covid-era border restriction, known as Title 42, and opened a separate program that allows migrants of those nationalities and Haiti to apply to legally come to the United States. Thousands of migrants have already applied, and border encounters of those nationalities have dropped significantly.
Immigrant advocates and former Biden officials have slammed the return of migrants to Mexico and the latest policy rollout, calling it a pivot from Biden’s pledge to restore asylum. Biden has long promised to take a humane approach to the situation at the border – a promise that some critics say the current White House could risk breaking with some of their restrictive border policies.
“The original sin was relying on President Trump’s Title 42 instead of taking the early hits to get out of it and build legal pathways to relieve pressure off the border,” said Alida Garcia, vice president of advocacy at FWD.us and a former White House official.
“Now, we’re left with this terrible mess that is only going to increase children crossing on their own and empower cartels,” Garcia added.
The balance of power within the White House over immigration has also changed over the last two years, with progressives largely leaving the administration and people with more moderate positions having more influence. In the first months of the administration, there was often disagreement among moderates and progressives within the administration about how to address migrants at the border, leaving little room for solutions or decisions.
The management of the US southern border not only exposed fractures within the administration but also within Biden’s own party about how to address an influx of migrants at the US-Mexico border and a buckling immigration system.
Following last week’s announcement, multiple Democratic lawmakers immediately criticized the move to restrict asylum.
“I am deeply outraged by the Biden Administration’s proposed ban on asylum seekers,” said Democratic Rep. Jamaal Bowman of New York in a statement. “Our immigration policies already fall short in supporting asylum-seekers, but this ban would go further by attacking the very bedrock of our most basic commitment to asylum.”
Democratic Rep. Henry Cuellar of Texas, who has previously been a critic of Biden’s management of the border, argued that providing incentives for people to follow a lawful pathway to the US is important to avoid a surge at the border.
“They have shifted. It looks like there’s a movement to the middle,” Cuellar said of the Biden administration. “I think that’s good policy, especially for people at the border.”
“You have to have something in place. You have to have policy in place when Title 42 goes away May 11,” he added.
The administration has repeatedly called on Congress to pass immigration reform, which hasn’t happened in decades and has left presidents relying on a patchwork of policies to stem the ongoing flow of migrants.
In the interim, the administration has leaned on Title 42 to turn away certain migrants encountered at the US-Mexico border. With the clock ticking on its expiration in May and amid ongoing litigation, officials are also considering other enforcement measures as tens of thousands of migrants continue to move in the Western Hemisphere.
Among the plans being considered by the administration is a fast-track deportation process known as “expedited removal.” While Mexico has been taking migrants under Title 42 and previously under a Trump-era border policy known as “remain in Mexico,” the plan would appear to mark the first time Mexico would take back non-Mexican deportees at a large scale. The Department of Homeland Security has denied reports of the plan.