The Departments of Homeland and Security and Justice have posted the draft text of a new rule that will make it much harder for migrants to request asylum at the U.S.-Mexico border.

The rule would place a “rebuttable presumption of ineligibility” on any asylum seeker who passes through another country en route to the border. In order to avoid being automatically ineligible for asylum, regardless of the threats they may have faced, non-Mexican asylum seekers would have to:

• Apply, using CBP’s “CBP One” smartphone app, for one of a limited number of appointments available at land-border ports of entry. This is very difficult to do, as we noted in a February 17 report and in our February 2 Border Update. Right now, the daily allotment of appointments usually fills up in about two minutes. If all migrants from third countries must use the app, and if the number of appointments doesn’t grow dramatically, then the new rule will create a sort of “super-metering on steroids” process in which only a trickle of protection-seeking migrants is permitted to seek asylum.
• It’s not at all clear that Mexico’s government has agreed to take back an expanded number of rejected asylum-seeking migrants from third countries. The draft rule just refers to Mexico’s “willingness” to take migrants back across the border as long the U.S. government offers other legal pathways to some protection-seeking migrants, like the “humanitarian parole” program the Biden administration is currently offering to the limited number of Cubans, Haitians, Nicaraguans, and Venezuelans who hold passports and have U.S.-based sponsors.

The rule would go into effect once the Title 42 policy terminates, and remain in effect for two years, though it could be prolonged.

Here’s WOLA President Carolina Jiménez’s contribution to a multiple-organization response at the website of the #WelcomeWithDignity campaign.

“It’s impossible to imagine how the Biden administration’s revival of this cruel Trump-era policy could be legal,” said Carolina Jiménez Sandoval, president of the Washington Office on Latin America. “A federal court struck down a similar measure in 2020. U.S. law clearly provides only two circumstances in which asylum seekers can be excluded by a transit ban: if a ‘safe third country agreement’ exists, or if the migrant was ‘firmly settled’ in another country. These conditions almost never apply. People fleeing violence and persecution have the human right to seek protection regardless of how they arrived. Curtailing access to asylum also sets a dangerous precedent that other countries in the region might model.”