The Volokh Conspiracy

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Biden's New Asylum Policy is Both Harmful and Illegal

It is also questionable whether it will achieve its political goals.


Earlier today, President Biden announced a new policy severely restricting migrants' rights to claim asylum after crossing the southern border. Reason immigration writer Fiona Harrigan has a helpful summary of its provisions:

"The entry of any noncitizen into the United States across the southern border is hereby suspended and limited," said Biden's order. When border encounters between ports of entry hit an average of 2,500 per day over a seven-day period, migrants will no longer be allowed to seek asylum unless they qualify for a narrow exception or request an appointment at a port of entry through an app (a process that has been glitchy and cumbersome). The restrictions will lift two weeks after the daily number of encounters between ports of entry falls below 1,500 on average over a seven-day period.

The policy does include exceptions for unaccompanied minors and migrants who CBP officers grant permission to enter "based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter."

But the new policy would bar nearly all other migrants from applying for asylum, including those who are fleeing violence and persecution of the kind that asylum is supposed to protect against.

It's worth noting that Biden already adopted a highly restrictive "Trump-lite" asylum policy  last year, leading to a legal challenge in which a federal court ruled  against it. As Judge Judge Jon Tigar of the Northern District of California point out in his opinion, the plain text of the Refugee Act of 1980, "provides that any noncitizen who arrives in the United States, 'whether or not at a designated port of arrival' and 'irrespective of [their] status, may apply for asylum.'"  Similar (though even more restrictive) policies were struck down by courts under the Trump Administration, including in a decision written by prominent conservative Judge Jay Bybee.

Judge Tigar's ruling was stayed by the US Court of Appeals for the Ninth Circuit, which still has not reached a final decision on the case. This new policy is also likely to be challenged, and there is a high likelihood it too will be struck down by courts. The text of the 1980 Refugee Act is clear, and Biden's policy pretty obviously violates it.

My Cato Institute colleague David Bier explains why the policy is likely to be harmful and counterproductive, as well as illegal:

Biden's order will take effect when Border Patrol arrests exceed 2,500 per day (which they do now) and will expire only when arrests fall below 1,500 per day for two consecutive weeks. From fiscal years 2019 to 2024, DHS has met this 1,500-per-day target in 11 months—all but once in fiscal year 2020. The Biden administration has never met this standard.

Even the Trump administration, despite the pandemic, a locked‐​down economy, and the most determined executive branch, failed to meet this standard in August, September, October, November, or December 2020. Achieving this goal would require a 60‐​percent decline in arrests….

The executive order will not work. Biden has already tried a complete ban on asylum—an even more severe version under the health code law known as Title 42. Title 42 was applied most strictly to adults traveling without children from Mexico and northern Central America. During the time that it was enforced, Title 42 almost immediately led to more arrests of this demographic. This increase happened primarily because people who were expelled often attempted to re‐​cross the border, leading to more arrests….

Biden is demanding that every asylum seeker apply for asylum at US ports of entry, but his order also requires that they use a cell phone app called CBP One to make an appointment three weeks in advance while they are still in Mexico. Moreover, the number of daily appointments is capped at 1,450. Therefore, Biden is effectively banning about 4,000 people per day from seeking asylum but is not opening up any additional legal ways for them to enter. Not a single additional person will enter legally because of this new rule. This will doom the entire effort, as people will continue to enter illegally….

If the order is effective at denying [asylum to] people who cross illegally, it will cause more people to enter illegally and try to evade detection rather than turn themselves in for asylum. Evasions mean more trespassing on private property, more car chases with smugglers, and more confrontations between Border Patrol agents and migrants….

This action will only result in more deaths of migrants who think the only way to enter is by evading Border Patrol—by hiding in deserts, swimming the Rio Grande River, or slipping in surreptitiously into the back of tractor‐​trailers. In the big picture, President Biden should not be ignoring US laws. He should not be seeking to stop people from coming to the United States. Instead, he should be working to let them enter this country legally and orderly so they can contribute to it. America is a great country, and people want to join it. That's a good thing. We should let them do so legally.

As Bier and I outlined in a November USA Today article, if Biden really wants to reduce disorder at the border, the best way to do it is by expanding his own previous initiatives to make legal entry easier, which have been undermined by arbitrary caps and bureaucratic obstacles. Federal and state governments could also make things better by giving asylum seekers work permits immediately and cutting back on zoning rules that make it difficult to build new housing in response to demand.

Such policies would simultaneously help migrants fleeing horrible oppression and poverty,  boost the American economy by enabling migrants to contribute to it more, and reduce chaos at the border. Even if it survives legal challenges, Biden's new asylum policy is unlikely to achieve any of those goals, and—for reasons David Bier notes—could well make things worse.

Admittedly, Biden's main goal is probably to help himself politically in an election year, rather than to improve policy or follow the law. We'll see if that political objective is achieved. I am skeptical that he will get much of a boost from it. Public opinion on border issues is more influenced by perceptions of disorder than by details of policy (which most voters, especially relatively inattentive swing voters, know little about). But I could be wrong. The White House's political strategists may have a better grasp on the political dynamics than I do. Perhaps the appearance of toughness will pay political dividends, regardless of the actual effects on the ground. Time will tell.

Biden's overall immigration policy is still vastly better than Trump's, and he deserves credit for a variety of improvements. But he also deserves blame when he adopts cruel Trump-like asylum policies in the hope of scoring political points.