As widely anticipated, President Biden has issued “A Proclamation on Securing the Border.”
There are more people around the world who are displaced from their homes today than at any point in time since World War II. Many factors have contributed to this problem. Failing regimes and dire economic conditions afflict many countries, including several in the Western Hemisphere. Violence linked to transnational criminal organizations has displaced substantial numbers of people in Latin America. The global COVID-19 pandemic upended societies around the globe. Natural disasters have forced people from their homes.
As a result of these global conditions, we have been experiencing substantial levels of migration throughout the Western Hemisphere, including at our southwest land border. In 2019, encounters nearly doubled from their 2018 level to almost 1 million. In 2020, the global COVID-19 pandemic led countries throughout the world to shut their borders and suspend international travel; however, once the pandemic began to recede, international travel resumed, and we again experienced elevated levels of migration throughout the Western Hemisphere, including at our southwest land border.
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The current situation is also the direct result of the Congress’s failure to update an immigration and asylum system that is simply broken — and not equipped to meet current needs. While my Administration has vigorously enforced the law within the constraints imposed by the existing system, the statutory framework put in place by the Congress is outdated. For the vast majority of people in immigration proceedings, the current laws make it impossible to quickly grant protection to those who require it and to quickly remove those who do not establish a legal basis to remain in the United States. This reality is compounded by the fact that the Congress has chronically underfunded our border security and immigration system and has failed to provide the resources or reforms it needs to be able to deliver timely consequences to most individuals who cross unlawfully and cannot establish a legal basis to remain in the United States.
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Our broken immigration system is directly contributing to the historic migration we are seeing throughout the Western Hemisphere, exacerbated by poor economic conditions, natural disasters, and general insecurity, and this fact, combined with inadequate resources to keep pace, has once again severely strained our capacity at the border. The result is a vicious cycle in which our United States Border Patrol facilities constantly risk overcrowding, our detention system has regularly been at capacity, and our asylum system remains backlogged and cannot deliver timely decisions, all of which spurs more people to make the dangerous journey north to the United States.
The Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so, is a core cause of this problem. Under current law, whenever a noncitizen in expedited removal indicates an intention to apply for asylum or a fear of persecution, they are referred for an interview with an asylum officer and cannot be removed through expedited removal if there is a significant possibility that they could establish eligibility for asylum. This screening standard is a requirement imposed by the Congress, but it has not functioned well in predicting ultimate success in asylum proceedings.
An accompanying Fact Sheet explains:
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.
Recent Actions to secure our border and address our broken 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 more quickly 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.
Revoked visas of CEOs and government officials who profit from migrants coming to the U.S. unlawfully
- The Department of State imposed visa restrictions on executives of several Colombian transportation companies who profit from smuggling migrants by sea. This action cracks down on companies that help facilitate unlawful entry into the United States, and sends a clear message that no one should profit from the exploitation of vulnerable migrants.
- The State Department also imposed visa restrictions on over 250 members of the Nicaraguan government, non-governmental actors, and their immediate family members for their roles in supporting the Ortega-Murillo regime, which is selling transit visas to migrants from within and beyond the Western Hemisphere who ultimately make their way to the Southern border.
- Previously, the State Department revoked visas of executives of charter airlines for similar actions.
Expanded Efforts to Dismantle Human Smuggling and Support Immigration Prosecutions
- The Departments of State and Justice launched an “Anti-Smuggling Rewards” initiative designed to dismantle the leadership of human smuggling organizations that bring migrants through Central America and across the Southern U.S. border. The initiative will offer financial rewards for information leading to the identification, location, arrest, or conviction of those most responsible for significant human smuggling activities in the region.
- The Department of Justice will seek new and increased penalties against human smugglers to properly account for the severity of their criminal conduct and the human misery that it causes.
- The Department of Justice is also partnering with the Department of Homeland Security to direct additional prosecutors and support staff to increase immigration-related prosecutions in crucial border U.S. Attorney’s Offices. Efforts include deploying additional DHS Special Assistant United States Attorneys to different U.S. Attorneys’ offices, assigning support staff to critical U.S. Attorneys’ offices, including DOJ Attorneys to serve details in U.S. Attorneys’ Offices in several border districts, and partnering with federal agencies to identify additional resources to target these crimes.
Enhancing Immigration Enforcement
- The Department of Homeland Security has surged agents to the Southern border and is referring a record number of people into expedited removal.
- The Department of Homeland Security is operating more repatriation flights per week than ever before. Over the past year, DHS has removed or returned more than 750,000 people, more than in every fiscal year since 2010.
- Working closely with partners throughout the region, the Biden-Harris Administration is identifying and collaborating on enforcement efforts designed to stop irregular migration before migrants reach our Southern border, expand investment and integration opportunities in the region to support those who may otherwise seek to migrate, and increase lawful pathways for migrants as an alternative to irregular migration.
Seizing Fentanyl at our Border
- Border officials have seized more fentanyl at ports of entry in the last two years than the past five years combined, and the President has added 40 drug detection machines across points of entry to disrupt the fentanyl smuggling into the Homeland. The bipartisan border agreement would fund the installation of 100 additional cutting-edge inspection machines to help detect fentanyl at our Southern border ports of entry.
- In close partnership with the Government of Mexico, the Department of Justice has extradited Nestor Isidro Perez Salaz, known as “El Nini,” from Mexico to the United States to face prosecution for his role in illicit fentanyl trafficking and human rights abuses. This is one of many examples of joint efforts with Mexico to tackle the fentanyl and synthetic drug epidemic that is killing so many people in our countries and globally, and to hold the drug trafficking organizations to account.
AP’s Elliot Spagat explains “How Biden’s new order to halt asylum at the US border is supposed to work.”
The measure takes effect immediately because the new policy is triggered when arrests for illegal entry reach 2,500. About 4,000 people already are entering the U.S. each day.
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The threshold triggers a halt on asylum until average daily arrests for illegal crossings fall below 1,500 for a week straight. The last time crossings were that low was in July 2020, during the depths of the COVID-19 pandemic.
The pandemic-related asylum restrictions known as Title 42 carried no legal consequences and encouraged repeat attempts. Now, migrants will be issued deportation orders even if they are denied a chance to seek asylum. That will expose them to criminal prosecution if they try again and ban them for several years from legally entering the country. It’s a key difference.
“We are ready to repatriate a record number of people in the coming days,” Blas Nuñez-Neto, assistant homeland security secretary for border and immigration policy, said in a conference call for Spanish-language reporters.
Migrants who express fear for their safety if they’re deported will be screened by U.S. asylum officers but under a higher standard than what’s currently in place. If they pass, they can remain to pursue other forms of humanitarian protection, including those laid out in the U.N. Convention Against Torture.
Unaccompanied children are exempt, raising the possibility that some parents may send their sons and daughters across the border without them.
SEMAFOR (“‘It’s really disappointing’: Congress’ progressives despair over Biden’s border order“):
Progressive and Hispanic Democrats vented their frustration Monday night as they prepared for President Biden to unveil a far-reaching executive action aimed at blocking off the Southern border to asylum-seekers.
“I think it’s really disappointing,” Congressional Progressive Caucus Chair Pramila Jayapal told Semafor, adding that she’d been briefed on the new order’s contents ahead of its Tuesday signing by the president. “[It] just plays into the idea that somehow harsh enforcement is going to work. That was Trump’s approach. We should be showing what the difference is.”
The order is expected to let officials deny new asylum claims by migrants if daily border crossings reach 2,500 a day or higher, well below the average rate of 4,300 per day in April, the latest month that data is publicly available. The rules, which mirror a proposal from the bipartisan border deal that collapsed in Congress earlier this year, would include exceptions for unaccompanied children and in certain humanitarian situations. But they would still represent a dramatic crackdown by a Democratic president who once campaigned against Donald Trump’s hardline approach to immigration.
California Sen. Alex Padilla, one of his chamber’s leading pro-immigration voices, suggested the order was unlikely to succeed as a deterrent. “You can build a wall as high as you want. You can make it hard to receive asylum if you want. It’s not going to sustainably reduce the number of people wanting to come to the United States for a number of reasons until you identify and address root causes,” he told Semafor.
The mass influx of asylum seekers at the border has proven to be one of Biden’s stickiest political challenges; polls by Gallup have found it’s now the issue Americans are most likely to cite as the most important problem facing the country, while a New York Times survey in March found that 49% of registered voters would back new asylum restrictions, versus 43% who would oppose them.
Still, left-leaning Democrats questioned whether Biden’s move to the right on the issue would boost his fortunes.
“We shouldn’t fall into the trap that Republicans have set for us,” Texas Rep. Greg Casar, a member of the Congressional Hispanic Caucus, told Semafor. “It’s going to not help the President politically because I don’t think Fox News is ever going to give him any credit.”
Notwithstanding the objections of the left wing of Biden’s party, the politics of this are certainly in his favor. Most Americans, even most Hispanic Americans, think we should enforce our borders and have people come to this country through legal means. And the current system is not only unsustainable but inhumane.
Unlike the Trump administration, Biden’s team has undoubtedly done their legwork on this. They’ve clearly gone through the hoops of the Administrative Procedures Act. But I’m skeptical that Biden has the legal authority to issue this order.
The “outdated” legislation which Biden repeatedly references is the Refugee Act of 1980, which implements key provisions of the 1951 Refugee Convention and its 1967 Protocol, international treaties to which the United States is a signatory. It’s not at all clear that the President has the authority to unilaterally ignore it.
At the same time, something has to be done. The system is being gamed by economic migrants seeking a better life for themselves and their families. While completely understandable, these people are not refugees and do not qualify for asylum. To qualify, one must face “persecution or a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group” if returned to one’s home country.
Alas, as the International Rescue Committee explains,
To be granted asylum, one must meet the definition of a refugee. However, international law recognizes that the refugee status determination process can be lengthy and complex. Therefore, asylum seekers should receive certain protections before a state has officially recognized them as refugees. Asylum seekers begin their process either at the U.S. border or within the U.S.
“A refugee is inherently a refugee even if a government hasn’t yet made that determination,” says IRC senior director for asylum and legal protection Olga Byrne. “If you meet that definition and you’re fleeing danger, you should not be penalized for your manner of entry, and you should not be turned away at the border to a country where you’d face persecution.”
Which creates the Catch-22 in which we’ve found ourselves for years now: hundreds of thousands of people, almost none of whom are legitimate refugees, assert a right to asylum and, since we can’t possibly process them, remain in the country essentially indefinitely. That’s just not sustainable. Meanwhile, we’re essentially unable to process legitimate refugees.
