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Top Biden officials field frustration from Democratic allies over border crackdown

Washington — Senior Biden administration officials, including Homeland Security Secretary Alejandro Mayorkas, fielded concerns and tough questions on Thursday from Democratic allies frustrated with a border crackdown the White House unveiled earlier in the day, participants of the private briefing told CBS News. 

Several members of the Congressional Hispanic Caucus told Mayorkas and top White House official Louisa Terrell during the virtual briefing they felt blindsided by some components of President Biden's announcement, including the expansion of the Title 42 border expulsions and a proposed regulation that would bar some migrants from asylum.

Members of the caucus, which comprises Democratic members of Congress and is closely aligned with Mr. Biden's policy priorities, voiced frustration about not being engaged in the formulation of the new border measures. One Democratic lawmaker who attended the briefing said there "was a general feeling that the White House should have been more transparent and forthcoming about their proposal." 

The group of lawmakers also raised concerns about some of the measures resembling Trump-era policies that received widespread condemnation from Democrats, human rights activists and even Mr. Biden himself, the participants said, requesting anonymity to discuss private deliberations with the administration.

"They didn't fully describe their plan and how it could fundamentally change asylum practices in the United States," the Democratic lawmaker told CBS News.

The lawmakers were "pissed," another participant of the virtual video briefing said. "It was pretty brutal."

Congressman Adriano Espaillat, a New York Democrat who attended Thursday's briefing, said members of the Hispanic caucus were frustrated that the White House "did not consult" them before rolling out the revamped border strategy, calling the lack of engagement "unacceptable." He said he applauded the administration for taking unilateral action in light of congressional inaction on immigration but also pushed back on some of the measures announced Thursday.

"It's sort of like we're normalizing and embracing the anti-asylum policies of the Trump administration," Espaillat told CBS News, saying he would file public comments expressing concerns about the proposed asylum restriction.

DHS Secretary Mayorkas Testifies In Senate Hearing
Secretary of Homeland Security Alejandro Mayorkas arrives to testify before a Senate Appropriations Subcommittee on Homeland Security, on May 4, 2022 in Washington, D.C. Kevin Dietsch/Getty Images

In its most sweeping move yet to curtail illegal border crossings, the Biden administration announced earlier on Thursday it would pair increased expulsions and expanded legal migration opportunities to deter migrants from Cuba, Nicaragua and Haiti from entering the U.S. illegally.

Officials pledged to admit up to 30,000 migrants from Cuba, Nicaragua, Haiti and Venezuela with U.S.-based financial sponsors each month and allow them to work legally in the U.S. At the same time, the Biden administration announced that migrants from the crisis-stricken countries who tried to enter the U.S. unlawfully would face immediate expulsion to Mexico under Title 42, a public health law that allows officials to quickly expel migrants without screening them for asylum.

The administration unveiled additional border-related measures on Thursday, including a proposed rule that, if enacted, would render migrants ineligible for asylum if they crossed the U.S. southern border unlawfully after failing to seek protection in third countries. The policy would include certain, yet unspecified, humanitarian exemptions, officials have said.

That proposal was one of the top concerns members of the Congressional Hispanic Caucus raised during the briefing with Mayorkas and other Biden administration officials. Several lawmakers pressed Mayorkas on how the proposed rule was different from a Trump administration regulation known as the "transit ban" that also restricted asylum on the basis of migrants not seeking refuge in other countries en route to the U.S., the briefing's participants said.

One Democratic lawmaker asked Mayorkas how that proposal squared with Mr. Biden's condemnation during the 2020 campaign trail of the Trump administration's efforts to restrict asylum eligibility. Another lawmaker asked Mayorkas who at the White House had come up with the idea.

Mayorkas and Terrell, the briefing participants said, responded by saying the proposed asylum restriction was not similar to the Trump administration's transit ban, which was ultimately struck down in federal court. Mayorkas cited the Biden administration's plans to expand legal channels for migrants and asylum-seekers to enter the country.

In a statement Friday, Congresswoman Nanette Barragán, the chair of the Congressional Hispanic Caucus, confirmed the caucus had told Mayorkas they were "disappointed" and concerned about the administration's efforts to broaden the scope of Title 42 and its proposal to narrow asylum eligibility.

"Following the announcement, the (the Congressional Hispanic Caucus) had a constructive conversation with Secretary Mayorkas to discuss our agreements and disagreements on the border policy and made clear that the CHC must be consulted on all policies regarding the border and immigration," said Barragán, a California Democrat.

During a press conference with reporters earlier on Thursday, Mayorkas also rebuffed the notion that the proposed asylum restriction, which will be subject to public comments before taking effect, resembles a Trump-era policy. He cited the Biden administration's effort to expand processing of vulnerable asylum-seekers at ports of entry along the U.S.-Mexico border. 

"This has actually no resemblance to the transit ban that was imposed in the Trump administration," Mayorkas said. "Because we have built lawful pathways. We do have a way for asylum seekers to seek relief at the ports of entry. We will, of course, have exceptions for humanitarian reasons when individuals cannot avail themselves of the CBP ONE application. So this is quite, quite different."

Asked about CBS News' reporting, White House press secretary Karine Jean-Pierre said the proposed regulation to limit asylum eligibility is at "the beginning of the rule-making process," and that there was "ample time" for lawmakers and the public to comment on it. 

"No new regulations have been issued, much less finalized," Jean-Pierre said during Friday's White House press briefing, denying that officials were proposing an "asylum ban." 

The proposed rule is expected to be published by the Departments of Justice and Homeland Security in the coming weeks. 

A Nicaraguan family crosses the Rio Grande river from Ciudad Juarez, Chihuahua state, Mexico to El Paso, Texas, US to ask for political asylum on December 27, 2022.  HERIKA MARTINEZ/AFP via Getty Images

Espaillat, the New York Democrat, said he raised concerns during the briefing about the sponsorship program announced Thursday. He stressed that he supports expanded legal migration paths, but said the program excludes asylum-seekers who are fleeing violence but lack financial means and ties to the U.S.

"When you do it that way, you almost create a point of privilege," he said. "Not everyone has a laptop or even an iPhone to be able to apply."

The strategy outlined by Mr. Biden Thursday is his administration's first comprehensive plan to deal with the historic levels of migration recorded along the U.S.-Mexico border over the past years. And it relies on a "carrots and sticks" approach that the Biden administration employed last fall to deter Venezuelan migration to the U.S. southern border.

After Mexico agreed to accept Venezuelans under Title 42 and the U.S. committed to allow up to 24,000 migrants from the South American country to enter the U.S. legally, the number of Venezuelan arrivals along the southern border plummeted. Biden administration officials hope the new measures would have a similar impact on migration flows from Cuba and Nicaragua.

But in addition to being criticized by Democratic allies, components of Mr. Biden's new strategy have garnered withering criticism from advocates for asylum-seekers and former administration officials. While they have praised the expanded legal migration avenues, critics have denounced the continued reliance on Title 42 and the proposal to limit asylum claims.

Lee Gelernt, an American Civil Liberties Union (ACLU) lawyer who is challenging the Title 42 rule in federal court, said the Biden administration was under no obligation to expand the pandemic-related policy, which was set to end last month until the Supreme Court suspended a lower court ruling that had declared the expulsions illegal. 

Moreover, Gelernt said, the ACLU is "deeply disappointed that the administration is contemplating a Trump-era anti-asylum transit ban. Any contemplated minor tweaks to that ban will not make it legal or reduce the grave harm it will cause asylum seekers."

Democratic Sens. Bob Menendez, Ben Ray Luján, Alex Padilla and Cory Booker joined the chorus of progressive opposition to the proposed asylum rule.

"We are also concerned about the Administration's new transit ban regulation that will disregard our obligations under international law by banning families from seeking asylum at the border, likely separating families and stranding migrants fleeing persecution and torture in countries unable to protect them," they wrote in a joint statement Thursday.

Angela Kelley, who served as Mayorkas' senior immigration counselor at DHS until her departure last year, lauded the 30,000 spots the Biden administration will allocate each month to admit asylum-seekers. But she expressed concern about the proposed asylum eligibility restriction.

"What the President and Secretary described today has a striking resemblance to past policies like the transit ban and the safe third country agreements that are highly objectionable and they have a steep hill to climb to distinguish why their version is not highly problematic," Kelley said Thursday.

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