The crisis at the border continues to unfold this month as President Joe Biden announced new measures on Tuesday to limit access to the U.S. asylum system when illegal border crossings reach emergency levels. This decision is largely influenced by the upcoming presidential elections, where the topic of immigration will be a deciding factor for many. However, while Biden bids to win over voters, this new policy could be incredibly detrimental to the individuals and families that flee violence, persecution, climate change and poverty.
EXECUTIVE ACTIONS AND NEW RESTRICTIONS
Biden’s executive actions, effective since the beginning of June, will impose broad restrictions on asylum as long as illegal border crossings exceed an average of 2,500 per day. Migrants that are deemed ineligible for protection will be returned either to their home countries or Mexico. Those that are able to present a case that qualifies them for fear of persecution will be exempted from this policy following more rigid screening procedures.
LEGAL CHALLENGES AND LEGISLATIVE CONTEXT
However, this new decision by Biden has been already challenged by the ACLU, who argue that an asylum ban is in direct violation of USA immigration law, much like Trump’s ban back in 2019.
Biden argues that the measure acts as a stopgap solution, a temporary fix that is required after the repeated failure of the bipartisan bill this year that would have paired the asylum cap with significant additional funding for immigration enforcement. Without this funding, the administration may face limitations similar to those that have previously hampered efforts to curb migration by restricting asylum access.
CAPACITY AND ENFORCEMENT CHALLENGES
Yet an old challenge arises with this new measure. Already the border faces shortages in medical aid, shelter and other vital resources for the incoming migrants. Detention spaces are often full and there are insufficient numbers of asylum officers with massive backlogs of asylum applications. Patrolling the border has proven insufficient and more often leads to cases of violence against migrants by border patrol officers. Overall the measure fails to address the real issue, a lack of comprehensive humane migration policy backed with sufficient funding. Experts argue that the measure will change very little in the large scheme of things, except drive migrants into more perilous decisions. Smugglers and traffickers will find new ways to reach the USA, however those routes will be more dangerous to those who are crossing.
CONDITIONS AND EXEMPTIONS
Biden has stated that the temporary restrictions will be enforced during “emergency border circumstances” and will be lifted if illegal crossings fall below a daily average of 1,500 for seven consecutive days. Futhermore, unaccompanied minors, migrants in medical distress, or those facing immediate life threats will be exempt from these restrictions. Currently, illegal crossings average about 3,700 per day along the U.S.-Mexico border, with large numbers of families and children surrendering to U.S. authorities and requesting protection.
LEGAL PROVISIONS AND THE “SHOUT TEST”
Biden’s order comes in contradiction with the US law that states that anyone who reaches American soil has the right to seek asylum, regardless of how they enter. Under U.S. law, Biden will use presidential authorities under Sections 212(f) and 215(a) of the Immigration and Nationality Act to temporarily suspend illegal entries.
Section 212(f), comes from a 1952, that permits the U.S. president to “suspend the entry” of foreigners if their arrival is “detrimental to the interests” of the country. This was the same base that the Trump administration used to impose the travel bans from several predominantly Muslim countries and to bar migrants from asylum if they crossed into the U.S. illegally.
Another critical change has been made to the policy regarding asylum. In the past, immigration officials would ask migrants if they had reason to fear returning home due to persecution and threats to their safety and lives. With Biden’s new policy, the immigration officials will now rely more on the “shout test”, which requires migrants to manifest their fears: this includes behaviors like shaking, crying, or showing signs of abuse.
Critics argue that the “shout test” leads to fewer migrants being referred for protection screenings, as border agents might ignore their concerns. An additional hurdle is that migrants often lack interpreters or are afraid to speak, potentially resulting in their swift deportation to dangerous situations.
Sources:
Biden says asylum restrictions necessary to ‘control border’
Biden announces new asylum cap in bid to deter illegal crossings – The Washington Post