The president is gambling on a show of strength at the border to counter the authoritarian and xenophobic messages about immigration that Trump has been resurrecting. The odds are good that nobody wins.
At 12 a.m. on June 5, 2024, the southwest border closed to thousands of people desperate to reach the United States. Invoking the same laws used by President Trump to trigger the notorious Muslim ban of 2017, President Biden authorized the suspension of entry into the U.S. for asylum seekers and others who attempt to cross the border unlawfully.
The suspension goes into effect whenever encounters of non-citizens between ports of entry along the southern border or coastal areas average 2,500 attempted entries a day for seven straight days. The suspension is lifted only after encounters drop to an average of 1,500 for seven days but resumes if the average returns to the 2,500-per-seven-day ratio.
It’s complicated, but the long and short of it is, if you happen to enter the U.S. unlawfully during a day when entry is suspended, and you don’t qualify for the very limited exceptions set out by the president, your odds of being permitted to apply for asylum—or even getting more than a cursory examination of your case—drop to pretty much zero. If the suspension is lifted the very next day, you would likely have more due process and the chance to have an asylum screening. However, the administration is also rumored to be preparing a new rule that would tighten the screening standard even more—meaning that even on a good day, someone fleeing persecution who crosses the U.S. border from Mexico or makes it to shore by boat from Haiti is still highly unlikely to have a decent chance at applying for asylum in the U.S.
Human rights and civil rights groups, as well as legal experts, have already condemned the new policy because it violates the U.S. law that permits anyone present in the country to apply for asylum, regardless of immigration status. Critics point to the reliance on Trump-era tactics and reasoning, previously rejected by numerous federal courts, as evidence that the Biden administration is less interested in finding solutions for the worldwide rise in migration than in scoring quick political points for “closing” the border. Many others are pointing to the misery and danger that befell immigrants trapped in Mexico during the Title 42 suspension and the Remain in Mexico program, predicting worse to come with the new suspension.
That misery hasn’t really gone away, as the Biden administration has continued to enforce policies that keep people languishing at the border while they remain in the virtual line created by Customs and Border Protection (CBP). This mobile appointment system limits the number of people without papers who can present themselves for admission each day to 1,450 appointments.
Moreover, the administration already put in place a regulation that prohibits people from applying for asylum if they failed to seek permission to approach the border (using the CBP app) or have been granted parole through one of the programs designed to reduce the number of people arriving unlawfully from Venezuela, Haiti, Nicaragua and Colombia. Although these parole programs and other efforts to increase refugee screenings in the Western hemisphere are a positive development, it has turned seeking protection in the U.S. into a roll of the dice. Many people can’t wait, or can’t risk the dangers that have been created by parceling out access to the border. So they continue to take the risk.
If you happen to enter the U.S. during a day when entry is suspended … your odds of being permitted to apply for asylum—or even getting more than a cursory examination of your case—drop to pretty much zero.
In the presidential proclamation issued on June 4, the administration touts its deportation record, noting that, through its use of expedited removal, it has removed 720,000 people in the last year, marking the highest rate of removals and returns since Fiscal Year 2010.
So, why close the border? The administration points to the unprecedented global migration crisis, the crumbling capacity of a broken immigration system and Congress’s failure to provide more resources for immigration enforcement as key factors. The proclamation is particularly critical of congressional inaction on the bipartisan Murphy-Lankford-Sinema immigration bill proposed in the Senate and supported by the administration, which died in the Senate in early 2024. This legislation would have adopted similar trigger methods for closing the border and significantly limited access to asylum.
Putting the maximum positive spin on it, the border suspension is designed to project a bold move by President Biden, who is at the end of his patience with a Congress that won’t act. By taking matters into his own hands, he is following the oft-heard mantra of the last decade: Executive action is the last resort when Congress doesn’t take its responsibilities seriously.
I have some sympathy for that general idea. At its best, exercising executive authority can prevent needless suffering. For instance, the authorization of deferred action for young people brought to the U.S. as children who did not have legal status, known as the DACA program, has been a lifeline for thousands of young people who know no home but the U.S. They have richly repaid that compassion by serving in the military, becoming first responders and teachers and showing what happens when people are given a chance to live out their potential. Similarly, the Biden administration’s use of its parole authority has been a humanitarian gesture that has protected thousands of Afghans, Ukrainians, Venezuelans and others from war and chaos.
But when executive action is used to restrict people’s opportunities, as with the border suspension, it’s harder to follow the logic. Under Section 212(f) of the Immigration and Nationality Act, the president has the power to suspend entry of a class of people when admission to the United States is not in the country’s best interests. Thus, to justify the border suspension, the president had to determine that something about people who didn’t have permission to enter the U.S., as a category of individuals, meant that their admission—even temporarily—would threaten the best interests of this country.
By taking matters into his own hands, he is following the oft-heard mantra of the last decade: Executive action is the last resort when Congress doesn’t take its responsibilities seriously. … But when executive action is used to restrict people’s opportunities, as with the border suspension, it’s harder to follow the logic.
While the proclamation cites the threat of overcrowded ports of entry and detention facilities and the backlog in asylum as motivating factors, that doesn’t actually explain the defining characteristic that makes certain people a threat. Reading more closely, the “unique” and threatening characteristic, apparently, is that most of these people will at least indicate a fear of return to their home countries. This triggers a credible fear screening, a low threshold for being allowed to take your case before a judge. According to the proclamation, it’s this screening itself that is the problem, as many people who pass credible fear are ultimately found ineligible for asylum and are therefore needlessly contributing to overcrowding and backlogs.
The problem with this argument is manifold.
- First, a low threshold standard inevitably means that not everyone who “passes” the first step of the process will prevail at the end.
- Second, the low final grant rate cited in the proclamation is likely calculated without taking any mitigating factors into account, such as changes in country conditions over prolonged waits for a hearing, whether or not those people denied asylum had counsel, whether they became eligible for other forms of relief and whether the expanded use of expedited removal inherently skews the results towards more denied cases.
- But most troublingly, pointing to the credible fear standard as the problem blames a law designed to protect people’s basic rights for doing what it was supposed to do.
Credible fear screenings are threshold tests built into a process known as expedited removal. When Congress drastically overhauled the immigration system in 1996, expedited removal was one of several accelerated processes Congress created to divert some cases—those that appeared most likely to have no basis for legal presence in the United States—from the immigration court system in the hopes of speeding up processing times and thwarting perceived asylum fraud. The credible fear process was the trade-off—a way to ensure that everyone subject to expedited removal at least got the chance to indicate a fear of return.
Over the years, successive Republican and Democratic presidents expanded its use to the point that expedited removal is the principal tool of border removal today. Thus, when the noise is stripped away, the presidential proclamation argues that it is not in the best interests of the nation to follow its own law.
In other words, suspending entry is based on the opinion that those who are placed in expedited removal who express a fear of return qualify for a credible fear screening, which may result in referral to immigration court and ultimately lead to a grant of asylum, are a threat to America’s interests.
The slippery slope continues, bringing the country to a point where our president can argue that we have to shut the border down because asking for asylum just takes too many resources.
It’s a dangerous game to play. Many immigration experts and historians would argue that expedited removal itself is an affront to America’s obligation to protect refugees because the process does not give every applicant access to a full hearing. Every expansion of expedited removal has created a bigger pool of people who are deported administratively, and thus even further outside the public’s notice. This has made it easier for people to treat border crossers as less deserving of protection, which in turn led to the conditions that allowed many to accept the Title 42 pandemic closure of the border as a necessary evil. The slippery slope continues, bringing the country to a point where our president can argue that we have to shut the border down because asking for asylum just takes too many resources.
It’s not logical, it’s not fair, but Biden isn’t the first president to place politics over principle at the border. Politicians scapegoat asylum seekers and the laws that protect them, however minimally, because they believe it is easier and more attractive to the public to point the finger. Until we all stand up for genuine immigration reform that tackles the tough questions of managing migration flows, ensuring sufficient legal immigration pathways, honoring our protection obligations and valuing immigration as a public good, politicians of both parties will take the easy way out.
The president is gambling on a show of strength at the border to counter the authoritarian and xenophobic messages about immigration that Trump has been resurrecting. But suspending entry to the border is a floating craps game that spells disaster for asylum seekers, while undermining the legacy of the Biden administration’s many accomplishments thus far in protecting immigrants and may do little to insulate him from attacks from the far right. The odds are good that nobody wins.
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