I used to always hear that making changes to Medicare or Social Security benefits for retirees was the third rail of politics. That certainly does not seem to be the case anymore (at least for the last 8 – 10 years). In recent years, immigration policy has become the new third rail of politics.
And if you agree with me that that’s the case, then there’s no more of a poster child for it than the U.S. southern border. And it got a whole lot more complicated (if you will) in late Spring when the Biden Administration announced a new policy which would impose additional restrictions on asylum for people arriving there.
Immigration advocates, among many others, immediately went up in arms, arguing that these new restrictions would severely erode due process and the protections that asylum guarantees, they feel (as I do) by federal law. Many also believe that based on current case law, the Administration’s new policy should be enjoined as a violation of the statutory right to seek asylum. This remains to be seen.
So, what’s happening here? Very generally, effective June 5, 2024, the Administration’s new policy closes the border between ports of entry when there is an average of 2,500 crossings a day over a seven-day period. The Administration’s new policy basically restricts the statutory right to apply for asylum during periods of high volumes of border crossings. The new policy will also allow the Administration to remove some migrants on a very expedited basis (some say in a matter of hours or days), and also prevents these individuals from coming back to the United States for five years. They could also be subject to criminal prosecution as well.
I completely understand the Administration’s need to do “something” to stem the tide of migrants coming to the U.S., and perhaps even to be admitted in when they present themselves. By anyone’s standards, the situation at the U.S. southern border is challenging. But to singularly focus on the border, as opposed to the need for a broader overhaul of the entire immigration system, is ridiculous.
What does the new rule do? First, it bases the right to access to asylum on border numbers. Second, it excludes those people who are apprehended between lawful ports of entry from being eligible for asylum (unless they qualify for narrow exceptions). Third, it creates a new, higher legal standard, called “reasonable probability,” for people to qualify “withholding of removal” and Convention Against Torture (CAT) relief, which are more limited legal protections than asylum. Fourth, Department of Homeland Security (DHS) officers will no longer ask questions to screen people for persecution, torture or other vulnerabilities; rather, individuals must affirmatively ask for protection by “manifesting” fear. And fifth, asylum seekers will only have four hours to consult an attorney before they are initially screened. (This is a huge impediment to an individual’s ability to access legal representation.)
Depending on who you speak to or what you read, there are probably 10 to 13 million immigrants in the United States without status. Congress and the President should focus their efforts on developing legal pathways so these individuals can regularize their status in the United States (and in absence of congressional action, the President should go it alone by Executive Action and protect individuals who have been living in, and contributing to, our country for years but cannot apply for legal status). The Administration should coordinate with other countries to give people real alternatives other than to journeying to our southern border. Congress should also provide more visas (both temporary and permanent) to unify families and provide businesses with the manpower and talent that they desperately need.
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. Over the past several years, we have seen an erosion of that principle through a combination of policies, practices, and regulations. At the same time, we’re experiencing migration in numbers never seen before. The Biden Administration’s new policy creates its own “wall” to asylum (and due process as a result) for individuals arriving at our southern border with legitimate claims to asylum. Instead of creating obstacles, the Administration (and Congress) should get together and create humanitarian solutions that recognize what’s happening in the world both within and outside our borders.