A proposed immigration measure would all but eliminate access to asylum to those who arrive at the U.S-Mexico border without first seeking protection from their home country or in a country they travel through on their way to the United States.

Under the rule recently announced by the Biden administration, migrants would be presumed to be ineligible for asylum unless they can prove they were denied safe refuge in Mexico or another country along their journey.

Human rights advocates in the El Paso region who have long fought for the expansion of pathways to legal immigration quickly denounced the proposal, calling it dangerous and illegal. Others see it as little more than a political move ahead of the 2024 presidential election. Most believe it will drive migrants to cross into the United States without being processed by border agents – and into the hands of smugglers the policy states it aims to protect them from.

“I am disappointed that the Biden administration is choosing to limit access to asylum, which is one of the few remaining legal pathways many migrants have for fleeing violence and seeking refuge in our country,” U.S. Rep. Veronica Escobar, D-El Paso, said in a statement. “Seeking asylum at our border is an established right and the last thing we should compromise.”

U.S. immigration law allows migrants fleeing prosecution to request asylum regardless of how they arrive in the country. Similar attempts by the Trump administration to implement so-called transit bans were successfully challenged in court – and at one time criticized by Biden.

The proposal states that the temporary rule would be implemented for two years “in anticipation of a potential surge of migration” at the Southwest border. Although a specific timeline wasn’t given, it is likely to start in May. That is when the COVID-19 public health emergency is set to end, effectively canceling out Title 42 restrictions on immigration that led to historic numbers of migrants arriving in El Paso and other cities along the U.S.-Mexico border last year.

Border agents encountered a record 2.4 million migrants at the Southwest border in fiscal year 2022, and nearly 633,500 in the first quarter this fiscal year. In the El Paso sector, agents reported more than 162,600 encounters with migrants from October to December – more than triple over the previous year.

Those numbers dwindled significantly across the border in January after Biden expanded Title 42 restrictions – which critics say are simply being replaced by the new rule.

President Joe Biden walks along the border fence in El Paso with U.S. Border Patrol agents on Jan. 8. (Omar Ornelas/El Paso Times via White House press pool)

Without the measure, the proposal states, the number of migrants arriving at the U.S.-Mexico border would reach levels that would undermine the departments’ ability to “safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system.”

The rule would encourage migrants to seek “lawful, safe and orderly pathways” into the United States and therefore reduce their reliance on human smuggling networks, the proposal states.

‘Whatever it takes’

That is far from what Hernan, a 27-year-old migrant from Venezuela, believes would happen.

“You’re going to see more and more people coming over illegally because they will become desperate like me,” said Hernan, who left his home country in November and arrived in Juárez a month later. “They’ll pay smugglers and do whatever it takes to get here.”

Hernan hoped to request asylum in December when Title 42 was expected to be lifted. When that did not happen, he became frustrated and crossed into El Paso in late January without being processed by the Border Patrol. He was deported and later crossed again, seeking refuge along the sidewalks in front of Sacred Heart Catholic Church in South El Paso.

El Paso Matters does not  identify migrants seeking asylum by their full names as many are fleeing persecution and fear for their safety.

“We keep hoping (the U.S. government) will create laws that allow us to apply for asylum, stay and work here and have our day in court,” said Hernan, whose wife and teenage son have been living in migrant shelters in Juárez. 

Hernan said his family left Venezuela a year after his brother was killed, allegedly for refusing to pay gang members who demanded a monthly cut of his grocery store profits.

A group of migrants stand outside Sacred Heart Catholic Church on Wednesday, Jan. 4 after Border Patrol agents detained van loads of their friends and family. (Cindy Ramirez / El Paso Matters)

That’s the kind of situation that Melissa M. Lopez, executive director and an attorney for El Paso’s Diocesan Migrant and Refugee Services, said will entice migrants into the United States with or without the ability to request asylum.

“It will continue to drive people back into the shadows because the thought of a fair system is no more,” Lopez said. “That’s a lot of what we’ve seen here in El Paso already. People who are undetected, undocumented are almost forced to go underground because that’s all that is left for them.”

Lopez said cutting off access to asylum at the border will lead to more migrants jumping the border wall or entering the country through dangerous canals.

“People are being pushed into the hands of the criminal ‘coyotes’ and ‘polleros,’ the smugglers who are taking advantage of a government that is cloaking all the lawful ways to seek asylum,” she said.

Regressive and illegal

The proposed rule does have a few exemptions that would allow migrants who are denied asylum to rebut their claim: If they faced imminent threat to their life or safety such as rape or kidnapping, were victims of a severe form of trafficking or have an acute medical emergency. It also would not apply to unaccompanied children.

Migrant children play in front of Sacred Heart Catholic Church on Wednesday, Jan. 4. (Cindy Ramirez / El Paso Matters)

But those exemptions are narrow, say leaders of area migrant organizations who view the proposed policy as more than inhumane.

Dylan Corbett, executive director of the Hope Border Institute in El Paso, called the transit ban political – and illegal.

“The Biden administration is playing hard and fast with (the) rights and safety of vulnerable migrants at the border,” Corbett said on Twitter. “With its few exceptions, it has the appearance of respectability, and being temporary, it cynically gets the (administration) past the upcoming elections.”

Adding that “cowardice” is at the root of the proposal, Corbett said the ban is “regressive, illegal and lays down a precedent that will be difficult to walk back.”

Escobar also believes the proposed rule is “a step backward” and focuses on ineffective deterrence measures rather than meaningful immigration reform.

“If we have learned anything over the last three decades, it’s that deterrence policies aren’t a solution,” Escobar said.

Fernando Garcia, executive director of the Border Network for Human Rights, said that migration has historically been cyclical and sometimes driven by immigration policies. The latest proposal, he said, is basically an asylum ban comparable to those the Trump administration tried putting in place.

“The Biden administration is basically bringing back the asylum ban,” he said. “It violates fundamental international asylum laws and the U.S. Constitution. This is not what we were expecting from Biden.”

“Whether this is a political game or not, it’s hurting families who have the constitutionally protected right to asylum,” Garcia said.

El Paso native Cindy Ramirez has spent most of her career in journalism, with some stints in public and media relations and military reporting. She's covered everything from education to local government...