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Albany Legal Blog

The Border Crisis

On Behalf of | Apr 28, 2021 | Immigration

As I mentioned last month, my hopes for where we would be now in terms of “comprehensive” immigration reform (or even just some basic and fundamental “change” for the better), as we come to the end of the first 100 days of the Biden Administration, has not been met. I know the prospect of immigration legislation is challenging, even in the best of times (and notwithstanding the numbers in the Senate), but the humanitarian crisis at the U.S. southern border has thrown a wrench into President Biden’s best of intentions, just as it did in prior administrations as well.

To address this, the Biden Administration needs to immediately focus on lawful, humanitarian-based solutions to deal with the increase in migrants, and in particular migrant children, arriving at our southern border. At the same time, the Biden Administration must rebuild an asylum system that was literally gutted by its predecessor. During President Trump’s administration, led by his minion Stephen Miller, the ability for migrants to apply for asylum, in the U.S. and at the southern border, was restricted by a myriad of misguided and harmful policies, practices, and regulations.

To get past this, President Biden and Congress need to rethink, and indeed some have argued “transform,” how we receive and screen migrants at the border. Instead of focusing on deterrence and enforcement only approaches, as the prior administration did, the United States needs to welcome individuals who come to our doorstep, with dignity and consistent with historic American values.

The time is now, and frankly U.S. law requires it.

Although our collective attention is now on the current situation at the U.S. southern border, including seeing the rise of immigrant children being placed in U.S. government custody, the current situation began well before President Biden took his oath of office. Specifically, U.S. Customs and Border Protection (“CBP”) data shows that the current increase in families and individual adults arriving at our southern border began in April 2020, which is when then President Trump started expelling all individuals encountered at the border, invoking public health authority allegedly provided by Title 42 of the U.S. Code.1 According to CBP data, after President Trump invoked 42 U.S.C. § 265, the number of single adults crossing the border began rising rapidly, from a low of 14,754 in April, 2020 to 62,041 in December, 2020. Why did this happen? I have no idea. At the same time, though, the number of unaccompanied children and families coming to the border also grew, albeit at a far slower rate (although it did begin to increase more quickly after President Biden took office).

As I have also written in the past, U.S. law says that any person who is physically present in the United States, or who “arrives” at the border, must be given an opportunity to seek asylum (obviously if they request it). Specifically, section 208(a)(1) of the Immigration and Nationality Act (“INA”) provides that “any alien who is physically present in the United States or who arrives in the United States … whether or not at a designated port of arrival … may apply for asylum[.]” This seems pretty clear to me.

Deterrence tactics and harsh policies, such as the invocation of 42 U.S.C. § 265, have either created or worsened a denial of due process, the separation of families, and prolonged detention, be it adults or children. Collectively, all of these things have undermined our country’s longstanding commitment to protect those fleeing violence and persecution.

Since its inception, the United States has been a beacon for those pursuing freedom and protection against persecution. The President and Congress can ensure the integrity of our borders while still upholding these fundamental truths. They just need to do it thoughtfully and lawfully. And they need to do it now.

1 Section 265 of U.S. Code Title 42 allows the Director of the Centers for Disease Control and Prevention (“CDC”) to “prohibit … the introduction” into the United States of individuals when the Director believes that “there is serious danger of the introduction of [a communicable] disease into the United States.” The rule allows CBP Border Patrol agents to effectuate such an order. In this case, on March 20, 2020, the same day that the Department of Health and Human Services (“HHS”) issued an emergency regulation to implement 42 U.S.C. § 265, then Director of the CDC, Robert R. Redfield, relied on this regulation to issue an order suspending the “introduction” of certain individuals who have been in “Coronavirus Impacted Areas.”