As Title 42 expires, is Joe Biden doing what he condemned Donald Trump for?

Official White House Photo by Adam Schultz

(WASHINGTON) -- The last time Joe Biden and Donald Trump shared a debate stage, the Democratic presidential nominee repeatedly attacked his opponent over his administration's immigration policies.

"This is the first president in the history of the United States of America that anybody seeking asylum has to do it in another country. That's never happened before. That’s never happened before in our country," Biden said with outrage.

"You come to the United States, and you make your case. That’s how you seek asylum, based on the following premise: Why I deserve it under American law," the former vice president added at the time.

But now, that very criticism has come back around more than two years into Biden's own term because critics -- including members of his own party -- human rights groups, and immigration lawyers say he has now implemented something close to what his predecessor did.

"Promises broken," tweeted Julián Castro, who served with Biden in President Barack Obama's cabinet and ran against him during the 2020 Democratic primary.

Biden administration officials, however, are quick to reject that idea, saying the new restrictions on asylum that the Biden administration announced on Wednesday do not close off the opportunity to seek asylum like Trump tried to do.

"This is not a ban on asylum. This is very different than the asylum ban that President Trump issued," Homeland Security Secretary Alejandro Mayorkas told ABC News Wednesday. "Our president has led the expansion of lawful pathways more than anyone in our history."

The ban is different from Trump's in a critical way. After penalizing Guatemala, Honduras and El Salvador with cuts in aid, the Trump administration was able to force the three Central American countries to sign agreements saying they were so-called "safe countries" -- meaning ones in which migrants seeking asylum would have to apply for the legal protection.

This meant that migrants reaching the southern U.S. border could not qualify for asylum if they transited one of those three countries -- a policy that a federal judge ultimately struck down in Trump's final days in office.

"Rather than ensure their safety, the rule increases the risk asylum applicants will be subjected to violence," Judge Jon Tigar wrote, adding it was "inconsistent with existing asylum laws" and "deprives vulnerable asylum applicants of essential procedural safeguards."

But Biden's rule is quite similar. It requires a migrant seeking asylum to have first applied for and been denied the legal protection in another country. If not, it doesn't mean an outright rejection like under Trump, but a "presumption of ineligibility." In other words, an asylum-seeker would still have the chance to apply for asylum after crossing the border, but they'd have to meet a "higher threshold of proof" that they have a "credible fear" of returning to their home country and therefore qualify," Mayorkas said.

That's not the only restriction, either.

Migrants must make an appointment to request asylum at a port of entry using the U.S. Customs and Border Protection's app called CBP One. If not, and they cross the border without documents and outside a port of entry, they could face removal and a five-year ban on reentry.

Like Mayorkas referenced, Biden administration officials also point to the expanded lawful pathways to the U.S., including a parole program that admits up to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans a month -- but only if they have a U.S.-based sponsor and apply from overseas and not after crossing the border. The administration has also committed to accepting this year up to 100,000 Guatemalans, Hondurans and Salvadorans who have family sponsors already in the U.S.

But migrant's rights advocates say it's no alternative to the right to law, enshrined under U.S. law. Like Trump's so-called transit ban, they say, Biden's new policy runs afoul of the section that specifies that migrants can apply for asylum once on U.S. soil "whether or not at a designated port of arrival."

"At a time of unprecedented global displacement, the Biden administration has elected to defy decades of humanitarian protections enshrined in U.S. law and international agreements," said Lee Williams, chief programs officer at Lutheran Immigration and Refugee Service, one of the largest U.S. resettlement agencies.

In particular, Williams condemned the requirement to first seek asylum in another country "as ludicrous as it is life-threatening" and the CBP One app "a life-or-death lottery."

The app in particular has been the subject of ridicule because of glitches, including documented difficulty of taking photos of migrants with darker skin and the difficulty of obtaining an appointment, especially for families traveling together. CBP announced changes earlier this week, like prioritizing applicants who have been waiting the longest and making appointments available on a regular basis, not all at once at a scheduled time.

But for many, Biden's new policies are particularly disheartening because of the very commitments that the president made during his campaign. On his campaign website, for example, he pledged to build a "fair and humane immigration system... ensuring the dignity of migrants and upholding their legal right to seek asylum."

But even some of Biden's own staffers have been disappointed. Jeremy Konyndyk, who was a senior Biden appointee at the U.S. Agency for International Development, said the policy "runs directly contrary to President Biden's repeated and vocal promises to undo his predecessor's weakening of U.S. asylum protections."

"The U.S. reaction to unprecedented numbers of people needing refuge here should not be -- must not be -- simply changing policies to more easily deny them protection. Yet that will be the essential effect of this new policy," added Konyndyk, now president of Refugees International.

ABC News's Karen Travers contributed to this report.

Friday, May 12, 2023 at 8:36AM by Conor Finnegan, ABC News Permalink