Earlier today, President Biden announced a new policy that severely limits the right of immigrants to seek asylum after crossing the southern border. reason Immigration writer Fiona Harrigan helpfully summarizes its terms:
“The entry of any non-citizens across the southern border into the United States is hereby suspended and restricted,” Biden’s order said. When border clashes between ports of entry reached an average of 2,500 per day over seven days, migrants would no longer be allowed to seek asylum unless they Meet rare exceptions or request an appointment at the port of entry via the app (which is a problematic and cumbersome process). Restrictions will be lifted in two weeks after the average number of daily contacts between ports of entry falls below 1,500 over a seven-day period.
The policy does include exceptions for unaccompanied minors and immigrants, whom CBP officers allow entry “based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests.” An entry or encounter into.
But the new policy would bar nearly all other immigrants from applying for asylum, including those fleeing the violence and persecution asylum is supposed to prevent.
It is worth noting that Biden already adopted a highly restrictive “Trump-lite” asylum policy last year, triggering legal challenges and a federal court ruling against it. As Judge Jon Tigar of the Northern District of California pointed out in his opinion, the Refugee Act of 1980 expressly provides that “any noncitizen who arrives in the United States, ‘whether or not at a designated port of arrival’ and ‘whether [their] Similar (albeit more restrictive) policies were overturned by courts under the Trump administration, including in a ruling written by prominent conservative Judge Jay Bybee.
Judge Tigall’s ruling was put on hold by the U.S. Court of Appeals for the Ninth Circuit, which has not made a final ruling in the case. The new policy may also be challenged and, most likely, overturned by the courts. The text of the Refugee Act of 1980 is clear, and Biden’s policy clearly violates that law.
My Cato Institute colleague David Beale explains why this policy could be harmful, counterproductive, and illegal:
Biden’s order will take effect when the Border Patrol makes more than 2,500 arrests per day, which they do now, and will only expire if arrests fall below 1,500 per day for two consecutive weeks. The Department of Homeland Security hit the 1,500 cases per day goal in 11 months from fiscal 2019 to fiscal 2024 — a mark the Biden administration has never hit except once in fiscal 2020.
Even the Trump administration, despite the COVID-19 pandemic, economic lockdowns and a most determined administration, failed to meet that standard in August, September, October, November or December 2020. Achieving this goal would require a 60-percent reduction in arrests…
Executive orders won’t work. Biden has already tried banning asylum altogether, a harsher version of the health law known as Title 42. During its implementation, Article 42 almost immediately led to more arrests of such people. This increase is largely because deported people often try to recross the border, leading to more arrests…
Biden requires every asylum seeker to apply for asylum at a U.S. port of entry, but his order also requires them to make an appointment three weeks in advance while in Mexico using a mobile app called CBP One. In addition, the daily reservation limit is 1,450 people. As a result, Biden is effectively barring about 4,000 people a day from seeking asylum without opening any additional legal avenues for them to enter. Because of this new rule, no one will be able to legally enter anymore. This will undo the whole effort because people will continue to come in illegally….
If the command is effectively denied [asylum to] people crossing the border illegally, which will lead to more people entering illegally and trying to evade detection rather than turning themselves in and seeking asylum. The run means more trespassings on private property, more car chases with smugglers, and more confrontations between Border Patrol agents and immigrants….
The operation will only lead to the deaths of more migrants who believe the only way to enter is to evade Border Patrol — hiding in the desert, swimming in the Rio Grande, or sneaking into the back of a tractor-trailer. Looking at the big picture, President Biden should not ignore American law. He shouldn’t be trying to stop people from coming to the United States. Instead, he should work to get them into the country legally and orderly so that they can contribute to the country. America is a great country and people want to be a part of it. This is a good thing. We should let them do it legally.
As Bill and I outlined in a report in November USA Today The article states that if Biden really wants to reduce border chaos, the best way is to expand his own previous initiatives to make legal entry easier, but these initiatives have been undermined by arbitrary caps and bureaucratic obstacles. Federal and state governments could also improve the situation by immediately issuing work permits to asylum seekers and reducing zoning rules that make it difficult to build new housing based on demand.
These policies would simultaneously help immigrants flee horrific oppression and poverty, boost the U.S. economy by allowing immigrants to contribute more to the U.S. economy, and reduce chaos at the border. Even if Biden’s new asylum policy survives legal challenges, it’s unlikely to achieve any of these goals and — for reasons David Beer points out — will likely make things worse.
Granted, Biden’s main goal may be to help himself politically in an election year rather than improving policy or complying with the law. We will see if this political goal is achieved. I doubt he’ll get much of a boost from it. Public opinion on the border is shaped more by confusing perceptions than by policy details (of which most voters, especially relatively inattentive swing voters, know very little). But I could be wrong. The political strategists in the White House probably understand the political dynamics better than I do. Perhaps, whatever the actual effect, the appearance of toughness will pay political dividends. Time will prove everything.
Biden’s overall immigration policy is still much better than Trump’s, and he deserves credit for various improvements. But he is also to blame when he adopts cruel Trump-like asylum policies to score political points.
