Biden's Border Executive Order: What It Means for Asylum Seekers?

Over the last 8 years, all we we heard from the far-right camps is that our southern border is being overwhelmed by caravans of migrants, and that our immigration policies are weak and unable to stop the waves of drugs, migrants, and trafficking that happens everyday at our southern border.

Earlier this year the U.S. House attempted to pass a border security bill which was nearly identical to the one passed in previous year that would reinstate some of the Trump-era immigration policies. The border security bill was voted down 215-199, with five (5) Democrats voting alongside all Republicans in rejecting this bill.

Exhausted by the politics President Biden has announced New Actions to secure the southern border (“New Actions”) accompanying federal rule that imposes an arbitrary limit on the number of people permitted to seek asylum at the U.S.-Mexico border between ports of entry while also making the asylum screening process substantially harder to navigate for those fleeing persecution.

These New Actions are meant to be temporary until Congress decides it wants to do its job and legislate again.

So how will these New Actions affect Immigration? Taken straight from WhiteHouse.gov, these new actions are meant to:

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.

This is probably one of the major highlights of the New Actions, as it severely limits the amount of people who are eligible for Asylum. So, what issues does this problem resolve? What new issues does this raise? 

Who is affected by the Biden-Harris Administration’s Executive Action?

Currently there are 2 ways to enter the United States at the southern border:

1. Entering through the southern border through a port of entry and be inspected by Customs and Border Patrol (“CBP”)

2. Entering through the southern border NOT at a port of entry and be inspected by CBP

The big difference between the two is (1) is the official method of entry for declaration of Asylum, the migrant walks up to the Mexico-U.S. border and surrenders themselves to CBP and claims asylum, while (2) is what the New Action is attempting to abolish.

Basically, those who fit into method (2) usually sneaks through the border and sometime later:

i. either decides they want to file an affirmative asylum or

ii. get caught and be sent to removal proceedings and decide they want to claim asylum as their relief.

This will also bar the withholding of removal as that is the alternative to the application for asylum if you have been in the United States for over one (1) year, without applying for Asylum. These New Actions will only affect those in category (2), as it will limit the amount of people who can apply for Asylum to those who enter through an official port of entry and is inspected at the border.

Those who sneak through will not be allowed to claim asylum. 

The administration does claim that “these actions are not permanent” and that “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.”

But the key words were “low enough” to “safely and effectively”, who determines this?

If it is the United States government then we may never see these rules terminated. Most of these New Actions were on the April House Border Security Bill earlier this year, which is just a reinstatement of 2023’s border security bill that actually passed, which is a carryover from executive actions and legislation during the Trump-era. The border issue may never be “low enough” and “safely and effectively” are not standards you ever expect political bureaucracy to ever reach. This will make it for difficult for those in removal proceedings to declare relief, especially if this ban on asylum also carries over to a ban on withholding of removal.

Biden-Harris Administration’s Executive Action to Strengthen Border Security and the Broken U.S. 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 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.

What does all of this mean now?

Customs and Border Protection (CBP) will no longer examine people for fear of returning while the new asylum prohibition is in place. Rather, they will anticipate that people and families to "manifest'' their anxieties in a proactive manner, despite the fact that CBP has a terrible history of frightening asylum seekers or neglecting to document people's voiced concerns.

Furthermore, it is a well-established fact that individuals who are escaping persecution at the hands of official or quasi-official actors are quite reluctant to disclose their fears to armed, uniformed foreign government personnel. The few who are found to have "manifested'' fear will only be permitted to apply for restricted, short-term protection in the US, and only under extremely strict conditions.

This seems to make logical sense as it is written, if you cannot proactively let CBP know that you have a credible fear and show some proof that said fear is “credible” then you will be removed. This means that while you are at CBP, you will be detained for a lesser amount of time because you will be released back to Mexico at a faster rate. By allowing CBP to do this you reduce the amount of detainees at the border, asylum applications in queue, and reduce the amount of immigrants that would be in removal proceedings and thereby reducing stress on our court system.

So why are so many Immigration organizations up in arms about this? 

Not every immigrant is savvy enough to navigate the asylum process, not every immigrant who is leaving their home has the wherewithal to collect some evidence, write down the important facts about their fear, and then make the arduous trek from there hometown to the Mexico-U.S. border. The fear itself, combined with the added stress of traveling could lead to the immigrant forgetting or losing their proofs, recalling important facts, and be able to retell that story in a coherent, cognizant, and cogent manner at the border. And this could lead to many credible asylum claims being denied.

Consider instead of thinking about the Asylum applicant as a migrant trying to enter the United States, thinking about them as a victim of domestic abuse. Domestic Abuse victims often run away from their home because they fear that their living conditions may kill them, but they have been living in fear for so long that even while talking to the proper authorities may be too afraid to remember important information or even be able to properly tell the stories of their abuse. It is the job and duty of the law enforcement officer to examine the situation and determine that there may be domestic abuse at play.

This is like if the domestic abuse victim showed up to the hospital with a couple of black eyes and broken ribs and the police came and asked what happened and the victim was silent or was too scared to reveal their abuser, it should be the job of the officer to discern that their may be domestic abuse at play and the victim did not fall down the stairs, twice. Similarly, CBP officers should be required to examine people for fear of returning, rather than forcing migrants to manifest these anxieties and say the magic legal words to apply for asylum. 

Currently, Border Patrol agents are obligated to inquire about the individual's fear of returning to their home country when they stop someone attempting to enter the US between ports of entry. The government is disregarding this rule, despite the fact it is essential to the US's duty under the international Refugee Convention to guarantee that refugees are not sent back to danger. Rather, only those who affirmatively "shout out'' or otherwise communicate their concern to a border official will be permitted to pursue screening for limited protections in the United States after the 2,500-person threshold has been achieved.

Assuring that those who are seeking refuge must "manifests'' or "shout out'' their fear ensures that those who have good grounds for asylum and related assistance will nonetheless be deported back to danger. 

Families that sought safety in the US were subjected to the same burdens throughout the Biden administration's execution of the Title 42 expulsions program. Human rights observers discovered that most of the families that were deported had made it plain to border officials that they were afraid to go back, but they were nonetheless summarily deported.

What is the problem with the Biden-Harris New Actions?

According to current Asylum laws, 8 U.S. Code § 1158, anybody who enters "whether or not at a designated port of arrival'' is eligible to petition for asylum under US law. There is no geographical restriction on admission to asylum based on the location of apprehension at the U.S. border, nor is there a statutory cap on the number of individuals who may request refuge each day. Congress was clear in saying that protecting someone who is escaping torture or persecution just because they happened to cross at the wrong time or location makes no sense.

The Immigration and Nationality Act (INA)'s sections 212(f) and 215(a) serve as the proclamation's and rule's legal justification for these recently disclosed regulations. When the president determines that allowing migrants into the country would be against the interests of the United States, he may use Section 212(f) to stop their admission. Nonetheless, regardless of how they entered the country, the INA ensures access to refuge for anybody who is physically present in the country. The Biden administration's own interim final rule acknowledges that the regulations unveiled yesterday cannot replace the INA's asylum request rights. 

So who will harmed by these New Actions?

The most severely affected will be those in need of asylum who belong to marginalized populations already. Under this policy, the majority of those requesting asylum who arrive at the U.S.-Mexico border would be turned back. These individuals are Black, Brown, and Indigenous people. The most vulnerable people, those with mental or physical health issues, language barriers, or other conditions that make it difficult for them to express their fear to border officials in a way that satisfies the manifestation requirement, will be deported without even being given the opportunity to be screened for protection under the Convention Against Torture.

This policy will disproportionately affect those with less financial means and resources, much like other border policies of the Biden administration. Although the Biden administration's parole programs, which enable individuals from Cuba, Haiti, Nicaragua, and Venezuela to look for other paths to safety in the United States, are great for immigrants, they necessitate a passport and funds to cover flight travel expenses. The Biden administration's enforcement-only policies at the U.S.-Mexico border worsen the situation for those who are already pushed into dire situations due to a lack of money and resources to explore other possibilities.

If you have an immigration case or would like legal advice, schedule a consultation with me today here or call at 469-465-2344!