Biden Administration Expands Use of Title 42 and Proposes New Asylum Ban, In Exchange for Creation of Alternate Pathways for Migration and New Methods of Seeking Asylum at Ports of Entry

January 5, 2023
Last modified: 
January 5, 2023

WASHINGTON, Jan. 5, 2023Today the Biden administration announced a series of policy changes at the border, including an agreement reached with the Mexican government permitting 30,000 Venezuelans, Nicaraguans, Cubans, and Haitians to be expelled to Mexico each month, accompanied by a new parole program available to 30,000 nationals of those countries each month. The administration also announced its intention to publish a new proposed rule that would impose several sweeping new asylum bans, including a version of President Trump’s asylum “Transit Ban.”  

As described today by Homeland Security Secretary Mayorkas, the proposed transit ban rule would bar asylum for any person who had not previously applied for asylum in a third country before reaching the United States, as well as those who sought asylum without going through a new process at a port of entry. 

In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court. The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border. 

The following statement is from Jeremy Robbins, Executive Director, American Immigration Council: 

Creating an alternate pathway for migrants to come to the United States without having to brave the dangers of a journey on foot through Mexico is a positive step forward for the United States. Research has consistently shown that the best way to reduce irregular migration is through the creation of lawful pathways, which today’s action will do. But parole only provides temporary authorization to remain in the United States, and Congress needs to act to make these new pathways permanent. 

“However, today’s announcement also comes with a harsh, Trump-style crackdown on asylum seekers, many of whom are fleeing from regimes globally recognized as oppressive. Expanding the use of Title 42 expulsions to Mexico will cause enormous harm for the thousands of asylum seekers who are fleeing persecution in their home countries and will now be blocked from seeking safety. Title 42 is a failed policy which has caused immeasurable harm to our system of humanitarian protections, and the Biden administration should be getting rid of it, not expanding its use. 

“In addition, today’s announcement will reinstate multiple Trump-era policies that were previously found to be illegal. Not only would a new asylum ban be illegal and immoral, if put into place, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. Those who flee persecution should not be forced to jump through bureaucratic hoops while enduring deprivation and insecurity in dangerous border cities. Like Title 42, harsh policies like asylum bans arbitrarily deny people protections and generally fail to achieve any deterrent effect. 

For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum. When President Biden took office, he also promised to restore a safe and humane asylum process. While today’s actions do create a laudable alternate pathway for some people seeking protection in the United States, they also break from his prior promises and threaten a return to the same harmful asylum policies of his predecessor. 


For more information, contact:Brianna Dimas 210-639-5587 [email protected] 


The American Immigration Council is a powerful voice in promoting laws, policies, and attitudes that honor America’s proud history as a nation of immigrants. Through research and policy analysis, litigation and international exchange, the Council seeks to shape a twenty-first century vision of the American immigrant experience. In January 2022, the Council and New American Economy merged to combine a broad suite of advocacy tools to better expand and protect the rights of immigrants, more fully ensure immigrants’ ability to succeed economically, and help make the communities they settle in more welcoming. Follow the latest Council news and information on and Twitter @immcouncil. 

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