Washington D.C. (February 24, 2023) – A Center for Immigration Studies analysis of the proposed Biden administration’s asylum regulation finds the proposal to be a half-hearted attempt to deter illegal immigration into the United States. The proposed asylum regulation is so fraught with exceptions and loopholes that the general public should expect few prospective migrants to actually be deterred. Critics of the proposal have equated it to one of the Trump-era policies, but Biden’s proposal differs from Trump’s in many major ways.

The Biden administration’s new regulation creates a “rebuttable presumption of asylum ineligibility” for aliens who either fail to enroll in one of the Biden administration’s new parole programs or use the CBP One app to schedule their arrival in the United States after traveling through a country (other than their country of origin) en route to the United States in which they could have applied for asylum. The Trump rule, on the other hand, referred to as the “third-country transit rule,” barred aliens from asylum eligibility if they transited through a third-country without first seeking protection there.

Notably, the Biden administration’s proposed rule does not actually require migrants to submit an application for protection in a country they have transited through en route to the United States. The regulation also includes handful of easy to exploit exceptions, including a carve-out for family units who are able to establish eligibility for withholding of removal based on claims of persecution or torture.

According to Jacobs, the Center’s director of regulatory affairs and policy, “There are several loopholes and exceptions in the proposal. But the family unit exception may arguably be large enough to defeat the rule’s entire deterrence purpose. If the Biden administration sincerely wants to deter the smuggling of children into the United States, this is not the way to do it.”

The Departments have solicited comments from the public on the proposed regulation. Comments are due 30 days after its official publication in the Federal Register.