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Biden's new asylum rule echoes Trump; will likely face legal hurdles

President Joe Biden signed an executive order on June 4 allowing him to halt some asylum claims at the southern border, seeking to curb migrant crossings. Photo by Al Drago/UPI
1 of 3 | President Joe Biden signed an executive order on June 4 allowing him to halt some asylum claims at the southern border, seeking to curb migrant crossings. Photo by Al Drago/UPI | License Photo

June 13 (UPI) -- President Joe Biden announced a new immigration policy last week that would suspend the rights of migrants seeking asylum after 2,500 daily border crossings between ports of entry. The proposal has been met with criticism from immigration advocates and legal experts.

The executive order is intended to make it easier for immigration officers to remove migrants who are not authorized to enter the United States, reducing the "burden" on what it describes as an "overwhelmed" southern border.

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The ACLU immediately announced it intends to file a lawsuit against the Biden administration to block the policy. The lawsuit was filed Wednesday.

"We need solutions to address the challenges at the border, but the administration's planned executive actions will put thousands of lives at risk," Deirdre Schifeling, the ACLU's chief political and advocacy officer, said in a statement. "They will not meet the needs at the border, nor will they fix our broken immigration system."

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Biden's proposal invokes Section 212(f) of the Immigration and Nationality Act. It grants authority to the president to restrict or suspend immigration of any people by proclamation if they determine that their entry would be a detriment to the United States.

Former President Donald Trump used this authority repeatedly during his term in office, including in his executive order to ban travel from majority Muslim countries in the Middle East and Africa.

"It was illegal when Trump did it, and it is no less illegal now," Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, said in a statement.

The legal challenge is likely to be successful in blocking the policy from going into effect, according to Raha Wala, vice president of strategic partnerships and advocacy at the National Immigration Law Center. He agreed with Gelernt that Biden's new policy is very similar to what was imposed under the Trump administration.

"International and domestic law is very clear. As an individual, you have the right to seek asylum if you arrive in the United States and are facing persecution," Wala told UPI. "This executive action limits that, and in some cases outright bans it. This would lead to the global deconstruction of asylum."

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The new policy marks a stark change in direction from how Biden characterized his approach to immigration while campaigning in 2020, Wala adds.

"It's deeply disappointing to see President Biden go from campaigning to restore asylum to effectively banning it, which is what this executive order does," he said. "We are seeing and expecting to continue to see individuals who have bonafide asylum claims being turned away and now increasingly detained and put into expedited removal under this executive order."

Wala emphasized that putting a numeric limit on asylum seekers puts the executive order on shaky legal ground.

"There is nothing in U.S. or international law that allows you to say, 'You know what, we're a little busy. Come back another day,'" he said. "It's on incredibly shaky ground to put arbitrary limits on asylum."

The 2,500-person limit is based on the daily average of crossings over the course of a seven-day period.

Congress has hit a standstill on immigration reform, punting on another border security bill last month. It has been a similar story throughout 2024, leaving the president to turn to executive action while political opponents take aim at him over immigration numbers.

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Migrant crossings sharply declined in January and have remained steady by month since, according to data from U.S. Customs and Border Protection. However daily encounters have continually surpassed 2,500. In April, there were an average of 4,296 encounters per day.

Encounters include arrests and determinations that a migrant is not authorized to be admitted into the country.

Kerri Talbot, executive director of The Immigration Hub, explained that entering the United States through a port of entry is not so simple for migrants who have traveled great distances in search of safety.

The Immigration Hub is a national organization that advocates for fair immigration policies.

There are 328 ports of entry in all of the United States. There are 48 authorized border crossing sites along the 1,951 miles that make up the southern border between the United States and Mexico.

Talbot adds that it is difficult for migrants to find an appointment if they do arrive at a port of entry.

"People wait months and months after already traversing Central America, Panama -- been living on very little money," she said. "Mexico is blocking a lot of people from even getting to the border. By that time people are sick or exhausted or out of money. That encourages people to try to cross if they can."

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CBP has an online application that can be used to make appointments at a port of entry called the CBP One app. It is used to set up to 1,450 appointments per day. Talbot said it has been used by hundreds of thousands of people.

The impact on asylum seekers who are turned away, if the policy goes into effect, could be dire in many different cases, Wala said.

"One of the lessons we've learned is if you're fleeing for your life you are going to choose any option other than returning back to face persecution, torture or even death," Wala said. "In many cases we will see repeat attempts to access safety in the U.S."

The Biden administration has continued to discuss additional policies that could maintain access to asylum for some migrants. One proposal, referred to as parole in place, would allow undocumented spouses of U.S. citizens the chance to establish legal status if they meet certain criteria.

Talbot said this policy would be more in line with what Biden campaigned on.

"This program would be removing those barriers to allow folks to get on the path to citizenship," Talbot said. "We're also pushing them to look at parents of kids with disabilities."

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Wala said the best way to relieve pressure on the southern border is to create more legal pathways to citizenship, not less.

"What we need are common sense, humane and pragmatic solutions to solve what is for sure a major humanitarian crisis," he said. "What's particularly frustrating about this is we have so much evidence that these extreme, cruel, anti-asylum policies don't solve any issues at the border. They only increase the levels of chaos and humanitarian suffering."

One report Wala referred to is from the American Immigration Council, published in 2022. It found that asylum seekers who are expelled back to Mexico are often subjected to violence and extortion by cartels. There were about 10,000 reports of violence against migrants expelled under Title 42.

Another study, from the Gould School of Law at the University of Southern California in 2021, states that increased immigration enforcement does not significantly deter migrants from attempting to cross the southern border. The Trump-era policy that separated children from their parents when attempting to illegally cross the border also showed little deterrent effect if any.

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