What The Biden Asylum Order Means And How It Will Work Until It's Struck Down In Court
What The Biden Asylum Order Means And How It Will Work Until It's Struck Down In Court
We're not big fans!
President Joe Biden yesterday announced new restrictions on the right to request asylum at the US-Mexico border, citing congressional inaction on the bipartisan immigration bill that Republicans killed in February because Donald Trump told them to. Trump wanted to run on an immigration “crisis,” and damned if Republicans wanted to let Biden have a “victory” on immigration in an election year. Republicans will never fix the border, because it’s their favorite issue forever.
As the New York Times explains (gift link), Biden’s executive order will allow the Border Patrol to immediately return most people arrested after crossing the border without allowing them to claim asylum in most cases. It’s a huge reversal of how asylum law works, and when Donald Trump tried to enact similar restrictions on asylum in 2018, that order was struck down by federal courts.
The ACLU has already announced it will sue to block the Biden asylum order from taking effect. Attorney Lee Gelernt, who led the successful challenge against Trump’s 2018 order, said, “The administration has left us little choice but to sue. […] It was unlawful under Trump and is no less illegal now.”
The Times explains that the order, which went into effect at 12:01 AM today, will work like this if it survives the initial court challenges:
[The] policy kicks in once the seven-day average for daily illegal crossings hits 2,500 — a regular occurrence now. The border would reopen only after the figure drops to 1,500 for seven days in a row and stays that way for two weeks.
As the AP points out, the last time daily border arrests were below 2,500 was in January 2021, during the COVID pandemic, and the month Biden took office. A weekly average of fewer than 1,500 daily border encounters hasn’t been seen since July 2020, at the very high point of the pandemic, and when summer heat has tended to reduce illegal border crossings anyway.
For the last 44 years, under federal immigration law any person who arrives in the US — “whether or not at a designated port of arrival” — has the right to apply for asylum, including those who cross the border without papers. In recent years, nearly all migrants have turned themselves in immediately to the Border Patrol instead of trying to enter the US surreptitiously.
Once someone requests asylum, they have to demonstrate they have a “credible fear” of torture or persecution if they’re returned to their home country; then they will be given a date for an asylum hearing, but the immigration courts are so backlogged that it can take years for a hearing to be held.
The new removal rules will instead allow Border Patrol to immediately return most border crossers, with a few exceptions, as the Times notes —
including for minors who cross the border alone, victims of human trafficking and those who use a Customs and Border Protection app to schedule an appointment with a border officer to request asylum.
[Rebecca butting in here to opine that the exemption for unaccompanied minors is a terrible idea and last time it led to a humanitarian crisis as tiny babies came across by themselves and tried to turn themselves in to Border Patrol. Desperate parents sent their children off into the world and those children were quickly turned into child labor by supposed caretakers, and even by “relatives.” I’d far rather mandate only families be allowed in.]
About 1,450 appointments for asylum screenings at ports of entry are scheduled each day through the app. So that’s fine! And not like the dog drinking his coffee in hell fine, but actually fine.
Much less fine, guidance for implementation of the order essentially tells border agents not to ask if someone fears going back to their country; the screenings, with new narrower standards, will only be available when someone requests one. And instead of giving someone who requests screening 24 hours to find an attorney — which greatly improves applicants’ chances of passing — they’ll have only four hours. Needless to say, immigrant rights advocates are up in arms about the new rules.
We should add that most of the new enforcement mechanisms in Biden’s EO were in the bipartisan immigration bill that Republicans killed at Trump’s request. However, that bill also included funding to significantly increase the number of Homeland Security officers to perform initial screenings, and for many more immigration judges to cut down the backlog of asylum hearings.
There have long been complaints that the asylum process has been bogged down with too many cases where people primarily seeking to come to the US to work and make a better life for their families have claimed asylum even though they were not in danger. It’s very difficult to pin down any kind of percentage, though, since simply treating all rejected asylum claims as “invalid” ignores the simple fact that when asylum seekers have legal representation, they’re far more likely to win asylum. That certainly suggests that at least some number of valid claims for asylum get thrown out because the system is so hard for someone to navigate on their own.
The one thing that’s sure to happen by shutting down most asylum applications is that we are almost certain to deport people who would have qualified, who will now go back to take their chances in their home countries. People will almost certainly die.
Republicans, of course, are continuing to say that Biden hasn’t does enough. Donald Trump dismissed the order as “all about show, because he knows we have a debate coming up in three weeks,” and other Republicans complained that the order isn’t draconian enough, because they are fucking sociopaths:
In a call organized by Trump’s campaign, Stephen Miller, a senior adviser in Trump’s White House who orchestrated his most polarizing immigration policies, and Tom Homan, former acting director of the Immigration and Customs Enforcement in the Trump administration, said Biden’s order essentially would allow 2,500 people into the country a day and legalize the illegal entry into the U.S.
“The only reason they’re doing this is because of the election,” Homan said. “They’ve had three and a half years to take action and done nothing.”
In conclusion, we’re rooting for the ACLU to stop this in the courts, and damn right we’re supporting Democrats who are urging Biden to reverse the order.
[NYT (gift link) / AP / Texas Tribune / White House / LAT / Photo: Margo Akermark, Creative Commons License 2.0]
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Ta, Dok. I. Just. Can't.
I’m not sure that having it tossed by the courts is not part of the plan. Just sayin’.