Biden Orders Shutdown of Asylum Process
A desperate measure for a desperate problem.
As widely anticipated, President Biden has issued “A Proclamation on Securing the Border.”
There are more people around the world who are displaced from their homes today than at any point in time since World War II. Many factors have contributed to this problem. Failing regimes and dire economic conditions afflict many countries, including several in the Western Hemisphere. Violence linked to transnational criminal organizations has displaced substantial numbers of people in Latin America. The global COVID-19 pandemic upended societies around the globe. Natural disasters have forced people from their homes.
As a result of these global conditions, we have been experiencing substantial levels of migration throughout the Western Hemisphere, including at our southwest land border. In 2019, encounters nearly doubled from their 2018 level to almost 1 million. In 2020, the global COVID-19 pandemic led countries throughout the world to shut their borders and suspend international travel; however, once the pandemic began to recede, international travel resumed, and we again experienced elevated levels of migration throughout the Western Hemisphere, including at our southwest land border.
[…]
The current situation is also the direct result of the Congress’s failure to update an immigration and asylum system that is simply broken — and not equipped to meet current needs. While my Administration has vigorously enforced the law within the constraints imposed by the existing system, the statutory framework put in place by the Congress is outdated. For the vast majority of people in immigration proceedings, the current laws make it impossible to quickly grant protection to those who require it and to quickly remove those who do not establish a legal basis to remain in the United States. This reality is compounded by the fact that the Congress has chronically underfunded our border security and immigration system and has failed to provide the resources or reforms it needs to be able to deliver timely consequences to most individuals who cross unlawfully and cannot establish a legal basis to remain in the United States.
[…]
Our broken immigration system is directly contributing to the historic migration we are seeing throughout the Western Hemisphere, exacerbated by poor economic conditions, natural disasters, and general insecurity, and this fact, combined with inadequate resources to keep pace, has once again severely strained our capacity at the border. The result is a vicious cycle in which our United States Border Patrol facilities constantly risk overcrowding, our detention system has regularly been at capacity, and our asylum system remains backlogged and cannot deliver timely decisions, all of which spurs more people to make the dangerous journey north to the United States.
The Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so, is a core cause of this problem. Under current law, whenever a noncitizen in expedited removal indicates an intention to apply for asylum or a fear of persecution, they are referred for an interview with an asylum officer and cannot be removed through expedited removal if there is a significant possibility that they could establish eligibility for asylum. This screening standard is a requirement imposed by the Congress, but it has not functioned well in predicting ultimate success in asylum proceedings.
An accompanying Fact Sheet explains:
The Biden-Harris Administration’s executive actions will:
Bar Migrants Who Cross the Southern Border Unlawfully From Receiving Asylum
- President Biden issued a proclamation under Immigration and Nationality Act sections 212(f) and 215(a) suspending entry of noncitizens who cross the Southern border into the United States unlawfully. This proclamation is accompanied by an interim final rule from the Departments of Justice and Homeland Security that restricts asylum for those noncitizens.
- These actions will be in effect when the Southern border is overwhelmed, and they will make it easier for immigration officers to quickly remove individuals who do not have a legal basis to remain in the United States.
- These actions are not permanent. They will be discontinued when the number of migrants who cross the border between ports of entry is low enough for America’s system to safely and effectively manage border operations. These actions also include similar humanitarian exceptions to those included in the bipartisan border agreement announced in the Senate, including those for unaccompanied children and victims of trafficking.
Recent Actions to secure our border and address our broken immigration system:
Strengthening the Asylum Screening Process
- The Department of Homeland Security published a proposed rule to ensure that migrants who pose a public safety or national security risk are removed as quickly in the process as possible rather than remaining in prolonged, costly detention prior to removal. This proposed rule will enhance security and deliver more timely consequences for those who do not have a legal basis to remain in the United States.
Announced new actions to more quickly resolve immigration cases
- The Department of Justice and Department of Homeland Security launched a Recent Arrivals docket to more quickly resolve a portion of immigration cases for migrants who attempt to cross between ports of entry at the Southern border in violation of our immigration laws.
- Through this process, the Department of Justice will be able to hear these cases more quickly and the Department of Homeland Security will be able to more quickly remove individuals who do not have a legal basis to remain in the United States and grant protection to those with valid claims.
- The bipartisan border agreement would have created and supported an even more efficient framework for issuing final decisions to all asylum seekers. This new process to reform our overwhelmed immigration system can only be created and funded by Congress.
Revoked visas of CEOs and government officials who profit from migrants coming to the U.S. unlawfully
- The Department of State imposed visa restrictions on executives of several Colombian transportation companies who profit from smuggling migrants by sea. This action cracks down on companies that help facilitate unlawful entry into the United States, and sends a clear message that no one should profit from the exploitation of vulnerable migrants.
- The State Department also imposed visa restrictions on over 250 members of the Nicaraguan government, non-governmental actors, and their immediate family members for their roles in supporting the Ortega-Murillo regime, which is selling transit visas to migrants from within and beyond the Western Hemisphere who ultimately make their way to the Southern border.
- Previously, the State Department revoked visas of executives of charter airlines for similar actions.
Expanded Efforts to Dismantle Human Smuggling and Support Immigration Prosecutions
- The Departments of State and Justice launched an “Anti-Smuggling Rewards” initiative designed to dismantle the leadership of human smuggling organizations that bring migrants through Central America and across the Southern U.S. border. The initiative will offer financial rewards for information leading to the identification, location, arrest, or conviction of those most responsible for significant human smuggling activities in the region.
- The Department of Justice will seek new and increased penalties against human smugglers to properly account for the severity of their criminal conduct and the human misery that it causes.
- The Department of Justice is also partnering with the Department of Homeland Security to direct additional prosecutors and support staff to increase immigration-related prosecutions in crucial border U.S. Attorney’s Offices. Efforts include deploying additional DHS Special Assistant United States Attorneys to different U.S. Attorneys’ offices, assigning support staff to critical U.S. Attorneys’ offices, including DOJ Attorneys to serve details in U.S. Attorneys’ Offices in several border districts, and partnering with federal agencies to identify additional resources to target these crimes.
Enhancing Immigration Enforcement
- The Department of Homeland Security has surged agents to the Southern border and is referring a record number of people into expedited removal.
- The Department of Homeland Security is operating more repatriation flights per week than ever before. Over the past year, DHS has removed or returned more than 750,000 people, more than in every fiscal year since 2010.
- Working closely with partners throughout the region, the Biden-Harris Administration is identifying and collaborating on enforcement efforts designed to stop irregular migration before migrants reach our Southern border, expand investment and integration opportunities in the region to support those who may otherwise seek to migrate, and increase lawful pathways for migrants as an alternative to irregular migration.
Seizing Fentanyl at our Border
- Border officials have seized more fentanyl at ports of entry in the last two years than the past five years combined, and the President has added 40 drug detection machines across points of entry to disrupt the fentanyl smuggling into the Homeland. The bipartisan border agreement would fund the installation of 100 additional cutting-edge inspection machines to help detect fentanyl at our Southern border ports of entry.
- In close partnership with the Government of Mexico, the Department of Justice has extradited Nestor Isidro Perez Salaz, known as “El Nini,” from Mexico to the United States to face prosecution for his role in illicit fentanyl trafficking and human rights abuses. This is one of many examples of joint efforts with Mexico to tackle the fentanyl and synthetic drug epidemic that is killing so many people in our countries and globally, and to hold the drug trafficking organizations to account.
AP’s Elliot Spagat explains “How Biden’s new order to halt asylum at the US border is supposed to work.”
The measure takes effect immediately because the new policy is triggered when arrests for illegal entry reach 2,500. About 4,000 people already are entering the U.S. each day.
[…]
The threshold triggers a halt on asylum until average daily arrests for illegal crossings fall below 1,500 for a week straight. The last time crossings were that low was in July 2020, during the depths of the COVID-19 pandemic.
The pandemic-related asylum restrictions known as Title 42 carried no legal consequences and encouraged repeat attempts. Now, migrants will be issued deportation orders even if they are denied a chance to seek asylum. That will expose them to criminal prosecution if they try again and ban them for several years from legally entering the country. It’s a key difference.
“We are ready to repatriate a record number of people in the coming days,” Blas Nuñez-Neto, assistant homeland security secretary for border and immigration policy, said in a conference call for Spanish-language reporters.
Migrants who express fear for their safety if they’re deported will be screened by U.S. asylum officers but under a higher standard than what’s currently in place. If they pass, they can remain to pursue other forms of humanitarian protection, including those laid out in the U.N. Convention Against Torture.
Unaccompanied children are exempt, raising the possibility that some parents may send their sons and daughters across the border without them.
SEMAFOR (“‘It’s really disappointing’: Congress’ progressives despair over Biden’s border order“):
Progressive and Hispanic Democrats vented their frustration Monday night as they prepared for President Biden to unveil a far-reaching executive action aimed at blocking off the Southern border to asylum-seekers.
“I think it’s really disappointing,” Congressional Progressive Caucus Chair Pramila Jayapal told Semafor, adding that she’d been briefed on the new order’s contents ahead of its Tuesday signing by the president. “[It] just plays into the idea that somehow harsh enforcement is going to work. That was Trump’s approach. We should be showing what the difference is.”
The order is expected to let officials deny new asylum claims by migrants if daily border crossings reach 2,500 a day or higher, well below the average rate of 4,300 per day in April, the latest month that data is publicly available. The rules, which mirror a proposal from the bipartisan border deal that collapsed in Congress earlier this year, would include exceptions for unaccompanied children and in certain humanitarian situations. But they would still represent a dramatic crackdown by a Democratic president who once campaigned against Donald Trump’s hardline approach to immigration.
California Sen. Alex Padilla, one of his chamber’s leading pro-immigration voices, suggested the order was unlikely to succeed as a deterrent. “You can build a wall as high as you want. You can make it hard to receive asylum if you want. It’s not going to sustainably reduce the number of people wanting to come to the United States for a number of reasons until you identify and address root causes,” he told Semafor.
The mass influx of asylum seekers at the border has proven to be one of Biden’s stickiest political challenges; polls by Gallup have found it’s now the issue Americans are most likely to cite as the most important problem facing the country, while a New York Times survey in March found that 49% of registered voters would back new asylum restrictions, versus 43% who would oppose them.
Still, left-leaning Democrats questioned whether Biden’s move to the right on the issue would boost his fortunes.
“We shouldn’t fall into the trap that Republicans have set for us,” Texas Rep. Greg Casar, a member of the Congressional Hispanic Caucus, told Semafor. “It’s going to not help the President politically because I don’t think Fox News is ever going to give him any credit.”
Notwithstanding the objections of the left wing of Biden’s party, the politics of this are certainly in his favor. Most Americans, even most Hispanic Americans, think we should enforce our borders and have people come to this country through legal means. And the current system is not only unsustainable but inhumane.
Unlike the Trump administration, Biden’s team has undoubtedly done their legwork on this. They’ve clearly gone through the hoops of the Administrative Procedures Act. But I’m skeptical that Biden has the legal authority to issue this order.
The “outdated” legislation which Biden repeatedly references is the Refugee Act of 1980, which implements key provisions of the 1951 Refugee Convention and its 1967 Protocol, international treaties to which the United States is a signatory. It’s not at all clear that the President has the authority to unilaterally ignore it.
At the same time, something has to be done. The system is being gamed by economic migrants seeking a better life for themselves and their families. While completely understandable, these people are not refugees and do not qualify for asylum. To qualify, one must face “persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group” if returned to one’s home country.
Alas, as the International Rescue Committee explains,
To be granted asylum, one must meet the definition of a refugee. However, international law recognizes that the refugee status determination process can be lengthy and complex. Therefore, asylum seekers should receive certain protections before a state has officially recognized them as refugees. Asylum seekers begin their process either at the U.S. border or within the U.S.
“A refugee is inherently a refugee even if a government hasn’t yet made that determination,” says IRC senior director for asylum and legal protection Olga Byrne. “If you meet that definition and you’re fleeing danger, you should not be penalized for your manner of entry, and you should not be turned away at the border to a country where you’d face persecution.”
Which creates the Catch-22 in which we’ve found ourselves for years now: hundreds of thousands of people, almost none of whom are legitimate refugees, assert a right to asylum and, since we can’t possibly process them, remain in the country essentially indefinitely. That’s just not sustainable. Meanwhile, we’re essentially unable to process legitimate refugees.
Despite the handwringing, I don’t think the “let them all in, everyone deserves a chance” crowd have any idea of what is happening and what will happen. Rising temperatures and increasing catastrophic weather events will cause untold numbers to flee their countries of origin, both because of direct effects and because governments will become increasingly despotic and dangerous as things worsen. There is no way the US or Europe can handle this influx. While I think immigration is a net good for the country, that we have a moral obligation to welcome as many as we can, and I have real sympathy for the plights of those who uproot, and admire their determination, it’s a reality that if we simply opened our borders we would have hundreds of millions attempting to get in. The laws we have now are set up to address migration from one or two countries engaged in a civil war, not the mass uprooting of billions. The US political left, by refusing to face this harsh reality, simply takes themselves out of the discussion. Like so many Republican leaders on this subject, they are constructing an alternate reality and demanding policies designed for their fantasyland rather that the real world. Ultimately, left leaning political leadership is using this to score political points and abdicating from their responsibilities to actually deal with it.
The cynics amongst us will gladly point out that Biden is likely counting on immigrant advocates going to court and receiving an injunction, staying the implementation of the order.
Regarding the Progressive Caucus, well the could of legislated when Dems had a majority in the House, cut like a lot of issues the desire for the perfect interfere with the doable.
Oh by the way, why are the DACA folks still being hung out to dry?
For me the big issue here is that since current law allows people to enter the country away from organized border crossings for the purposes of seeking asylum, an executive order banning unlawful asylum seekers is like an executive order banning four-sided triangles.
The way I read it is that asylum seekers will be turned away only if the following conditions are both met:
a) The border is overwhelmed
b) The asylum seeker enters the country illegally, i.e., not through a sanctioned port of entry
Legally, this is questionable but not necessarily unreasonable. In practice, this means that economic migrants won’t be able to claim asylum only if caught, in the hope that they fall through the cracks and can manage to stay somehow.
However, turning away all asylum seekers – even those who enter the country legally (through the southern border or otherwise) – would be clear violation of a number of international treaties and, as such, outright illegal.
I certainly hope not that this is what Biden is proposing.
@Sleeping Dog:
I must be exceptionally cynical, because I think they’re expecting Republican attorney generals to go to court to block it on account of being insufficiently racist to satisfy them.
Of course, the best way to keep the border from being overwhelmed is making sure that employing illegal migrants is no longer economically attractive through hefty fines or other penalties, of course in combination with serious enforcement.
This is also the main reason why the UK (despite being noticeably poorer than a bunch of other Western European countries) is much more popular among the more questionable asylum seekers than surrounding countries. It is far, far easier to find a job, even without a work permit.
But getting rid of cheap (albeit illegal) labor is not something that Congress has ever shown much interest in.
I think this is an important point, and extends beyond government to the organizations that help refugees. The ones I’m aware of in my area tend to be religious groups like Jewish or Catholic Family Services, which have been getting overwhelmed.
Philosophically, yes we’re a relatively rich and privileged country, but we can’t help everybody. And politically, we won’t be helping anybody if TFG (the felon guy) retakes office. I think Biden is being wise here.
@MarkedMan has it right. This is not business as usual, it’s not going to be business as usual, the world is changing. If you think this is the worst of what we are going to have to do, you’re kidding yourself. There is going to be a wall, or the electronic equivalent. It’ll be worse in Europe.
We have a duty to genuine asylum seekers fleeing political persecution, but that’s a tiny fraction of what we have here. We absolutely profit from immigration, but if we are going to justify immigration as a net plus, we have to be able to be selective about who gets in. I’m quite sure there is racism and xenophobia in the hearts of many people who oppose uncontrolled immigration, but that is not what this is really about. If that was the main issue Republicans would be talking about legal immigration from India and Asia, and they aren’t. This is more about economic class than race.
We have a right and an obligation to control our borders. All these liberal/progressive countries in Europe, the ones we admire, have tougher controls than we have. And where they’ve had looser controls, Sweden for example, you see the rise of the far right. We have neither the obligation nor the ability to care for all the world’s poor. We do have an obligation to do what we can, but only consistent with the will of the American people. The American people are pretty clear that we do not have open borders.
De-globalization and the US-China cold war, pose real threats to global food supplies. Rising temperatures, lack of fresh water, etc… are likely to limit food production. Opposition to GMO foods adds to the problem. The war in Ukraine adds to the problem. Things are likely to get far worse before they start to get better, if things ever do get better. Grim times ahead.
And for the benefit of some commenters here, no, I am not cheering this on, I’m just seeing what is and making reasonable guesses about where it’s going.
@Stormy Dragon: In this case, yours may be the easier of the two cynical conclusions to draw. [ETA: And therefore easier to simply assume will happen.] I dunno.
It’s going to get really interesting when unlivable heat and water shortages start depopulating southwestern states. When the Midwest suffered the dust bowl, all those Okies and Arkies, etc weren’t exactly welcomed with open arms.
We can and should take a fair number of immigrants, but we only have the emergency facilitates and funds to handle so many at a time. These large numbers have stressed our system. The numbers need to go down. This is an issue separate from the overall issue of controlling our borders. However, I think this is aimed towards affecting the election but I think it’s too late and this should have been done at least a year ago. Its too late to convince any fence sitters that its meaningful and it doesnt help with his own supporters.
Steve
@becca: FWIW, my wife and I are looking at where to retire (mostly US only). Our criteria: “North”, i.e. roughly north of Philly, and away from hurricanes and rising sea levels. Access to a big city, preferably by rail. The prices in these places are exploding, significantly above the rest of the country. We may end up buying a place before we move there, just to lock in the price at a lower level.
@MarkedMan:
May I recommend Portland, Maine. We used to live in the Old Port area. Excellent restaurants, great views, good people, godawful weather.
@MarkedMan:
Check out Providence. Great restaurants and culture, and kind of weird, and very walkable. You’re close to bigger cities and the rest of New England, and not to far from Amtrak.
@MarkedMan:
@Michael Reynolds:
I’ll second MR’s Portland suggestion, lovely town and Amtrak does run to Boston.
@Michael Reynolds: Portland has been highly recommended to us, and as Sleeping Dog says it has rail access to Boston. Unfortunately if fails the flooding/hurricanes criteria.
@MarkedMan: @MarkedMan: If I were younger and intrepid I would check out the Detroit area. As far as Maine goes, Boothbay Harbor is where my husband spent a good chunk of his youth working on his grandfather’s excursion boats. If it wasn’t for the grandkids, I’d go there in a heartbeat.
@MarkedMan:
Au contraire, Portland is well above sea level, and the various harbor islands would mitigate storm swell and hurricane winds. Just don’t buy one of those condos in the marina. Old Port is well uphill – trust me, I walked that hill many times through sleet.
@steve:
The Biden campaign possibly has all kinds of internal polling, focus groups, and surveys indicating otherwise. There’s no other case for Biden’s pandering, except the pressing need to keep Trump’s fascism out of office.
One, as noted above by others, the courts will probably block Biden’s orders. The fix needs to come from Congress. Congress needs to pass the bipartisan border bill that Trump killed.
Two, the dirty little secret here is that migration is strengthening our economy. As long as the US equates economic success with endless growth (I don’t, but the establishment does), the US cannot drastically restrict alien entry. Not with our falling birth rates. There is a correlation between the so-called “Biden boom” and the so-called “crisis at the border,” but neither Biden nor his Republican opponents dare say so.
Note the official US Chamber of Commerce position is that immigration should be expanded — cha-ching! — although they are careful to plug “legal” immigration and call for border security, as nods to the Chamber’s rightwing allies.
@Michael Reynolds: Good to know! Back on the list.
I recently learned that my wife is convincing herself that our daughter and her partner will be staying in NYC indefinitely so that is factoring into her equations. Considering the amount of places she has lived in over the years, I’m not sure why she thinks the offspring will be any more permanently based. She won’t get it from her father either. I’ve lived in 15 or so different cities, towns and villages on three different continents. Maybe 20. And I’m not counting different towns in the same state.
@DK:
The laws are clear — refugees need to be considered for asylum whether they cross at a designated port of entry or not.
However, I don’t have as much confidence in the courts as everyone else seems to. There are a lot of federalist society judges with their Unitary Executive theory and hurting brown people is something of a sport, and this would be a two-fer. I can see it being left in place while it works its way through the courts.
@Gustopher: My understanding — and I’m not double-checking so I could be wrong — is that the courts already blocked a similar order from Convicted Felon Trump.
@MarkedMan:
Lisbon!
@MarkedMan:
I haven’t been there personally, but some close friends moved to Rochester, NY two years ago and have raved about it. I also see it making several “best places to live” lists too.
It’s worth noting that before the pandemic, border crossings were also much higher — going back to 2001, there was a blip in 2017 where arrests were low, but otherwise we would have perpetually been in this emergency. (I’m eyeballing multiple charts, as a lot of the more recently reported charts start in 2020, which as an anomaly)
This isn’t an emergency declaration to deal with a momentary crisis, so much as a wholesale rejection of asylum going forward. I think that’s a really shitty policy.
It’s also a really shitty idea to have this type of permanent emergency declaration coming from the executive branch.
Also, it’s worth noting that asylum claims are way up as a percentage of arrests. This is partly due to people gaming the system, but largely due to people fleeing violence in their country. There are a lot more plausible cases for asylum, where people have a credible fear of violence if they return and their government cannot or will not protect them.
These aren’t climate change refugees. Yet.
@DK: The courts are very different now. Trump appointed a lot of Federalist Society types.
@Andy: Having lived in Rochester, I can say it’s a fine city, so long as you avoid my family.
It went through a transition after the decline of Kodak and Xerox, but seems to have stabilized and mostly bounced back.
This blog has lots of connections to Rochester, as I have been living there for more or less three decades. It’s a great small city. If anyone ever needs recommendations let me know.
Or if anyone plans to visit/pass through–I will meet you and but you a coffee/beer/etc.
Also the silence of certain commenters on this thread speaks volumes.
Especially ones who have repeatedly raised the immigration crisis in the past.
@MarkedMan:
Kids in NYC? Oh, lucky you, unless she’s earning big money. My two insist on the Bay Area. They are our single biggest expense.
Well over 50 homes, 15 states, three foreign countries, god knows how many towns and cities, 11 different schools just to drop out after 10th grade, and a whole lot of weird gigs, including editorial cartoonist for a Cape Cod paper, pin-jammer at a bowling alley and so many more. I’ve been half-assedly writing a memoir/writing book, and TBH I sound like a lunatic. It took me a while to realize that I write just the way I’ve lived: nothing is planned, everything is improv.
My kids are putting down roots just to spite me.
@becca:
Will they though? Obviously a lot of people think you should be able to freely move between states as you like, but the world’s changed! There will be a wall, either physical or electronic, because people in the northeast, mid-atlantic, and midwest can’t reasonably be expected to just absorb endless numbers of desperate refugees from the southwest, regardless of how much we might sympathize with the plight in the home states. /sarc
A pathetic and cruel solution to a shoddy and mostly-fake problem, and I’m guessing it will do nothing for Biden politically, given that the 49% or however many in support of trashing asylum aren’t going to vote for him, and the 43% who support asylum are probably going to vote for him, with even more resignation and distance.
Combine with Hochul stopping congestion pricing, and it’s like the entire way of American life being fought for against the Great Replacement and the Left is a big but not overwhelmingly big portion or even a majority of America being terrified of everything, and everyone else having to understand them without reciprocation.
Rochester, New York
I was born in Rochester in January of 1948 and our family relocated to the midwest in the summer of 1961. Since then I have not had the opportunity to return. We lived first in Irondequoit then in West Webster.
My fading memories of those years include a visit to the Susan B. Anthony House. Before the 1960 presidential election my dad took me to the Rochester-Monroe County Airport to see then Vice President Richard “you won’t have me to kick around anymore” Nixon wave from the door of his airplane at a campaign stop.
When I was in the 5th grade the music teacher at school convinced my parents that I should take trumpet lessons at the Eastman School of Music. I do remember my mom driving me downtown and taking one on one instruction for several weeks. Don’t know if it was the expense involved or my total lack of discipline when it came to daily practice at home but it was a bust. However I still get to say that I studied at the Eastman School of Music.
When we moved away in ’61 the Irondequoit Bay Bridge was not yet built. We would take Lake Road at the north end of the bay. In the winter it was common to see hot rods racing on the ice of the frozen bay. Sometimes there would be a car sticking out of a hole where the ice wasn’t quite thick enough. Living as close to Lake Ontario as we did winter was one snowstorm after another.
Summer lasted for about 10 minutes around noon of a Wednesday in the first week of August.