Understanding the New Border Policy: An Executive Action by the Biden Administration targets asylum seekers

In response to increasing political pressure regarding the influx of migrants at the southern border, President Joe Biden has enacted a new border policy aimed at addressing the situation with a temporary halt on asylum requests. This decision, announced on Tuesday, comes through an executive action that is set to significantly alter the current approach to managing asylum seekers entering the United States.

Key Details of the Executive Action

Under this new policy, the processing of asylum requests will be temporarily suspended when the daily average number of encounters exceeds 2,500 between official ports of entry. According to a senior administration official, this threshold has already been reached, meaning the shutdown of asylum requests will go into effect immediately. The border will only reopen for asylum requests once the number of daily encounters falls to 1,500.

President Biden, in his White House address, emphasized the need to depoliticize border issues, stating, "The border is not a political issue to be weaponized." This policy leverages the Immigration and Nationality Act sections 212(f) and 215(a) to suspend the entry of noncitizens who unlawfully cross the southern border.

Enforcement and Exceptions

Senior officials clarified that migrants crossing the border unlawfully will generally be deemed ineligible for asylum unless they present exceptionally compelling circumstances. Those who fail to meet the "credible fear" criteria for asylum will face immediate removal, with the administration anticipating these removals could occur within days or even hours.

Despite the stringent measures, the policy includes exceptions for unaccompanied children, highlighting a nuanced approach to vulnerable populations. However, this exception has sparked criticism, with concerns about potential increases in child trafficking.

Political and Legal Landscape

This move has drawn mixed reactions from various political figures and stakeholders. Texas state Rep. Eddie Morales Jr. described it as a necessary step towards border security, while Republican lawmakers criticized the policy as insufficient and overdue. They argue that President Biden's administration created the current border crisis, suggesting the policy carries significant political risk.

Former President Donald Trump’s campaign spokesperson, Karoline Leavett, has also condemned the action, framing it as a catalyst for further illegal activities. Conversely, the Biden administration maintains that it is congressional inaction that has exacerbated the situation, pointing to a failed bipartisan border funding bill earlier this year.

Legal Challenges and Advocacy

The Biden administration anticipates legal challenges similar to those faced by the Trump administration when attempting to implement analogous restrictions. Advocacy groups like the ACLU are preparing lawsuits, arguing that a ban on asylum is unlawful. Lee Gelernt, deputy director of the ACLU's Immigrants’ Rights Project, expressed hopes that the administration might reconsider or amend the policy under judicial pressure.

Analyzing the Impact of the Biden Administration's Executive Action on Asylum Seekers

The Biden administration's recent executive action on immigration has sparked significant debate. However, its practical effect may be minimal, at least in the immediate future. This is due to anticipated injunctions from organizations like the ACLU, which are expected to delay the implementation of President Biden's Executive Order. Given the timing of this policy, it seems to serve more as a strategic move for the 2024 presidential election rather than a substantive change in immigration enforcement.

A Critical Flaw in the Executive Order

Despite the administration’s intentions, there is a critical flaw in the Executive Order that has gone largely unrecognized, even by its Republican critics. The policy states that only those who fail to meet the "credible fear" criteria for asylum will face immediate removal, potentially within days or hours.

A "credible fear" interview is an assessment conducted by the Office of Asylum to evaluate an applicant's claim for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). However, due to overcrowding in the prison system, the Department of Homeland Security rarely conducts these interviews. This means that, in practice, the Executive Order poses little threat to asylum seekers, especially since the threshold for meeting the "credible fear" criteria is relatively low.

The Real Impact on Asylum Seekers

Given the low standard for passing a "credible fear" interview and the infrequency with which these interviews are conducted, the executive action may not significantly alter the current situation for asylum seekers. Even if the order were to take effect following potential legal battles, its practical enforcement appears limited.

Our Commitment to Defending Immigrants

At the Chestnut Law Group, we are dedicated to defending foreign nationals who have been served with a Notice to Appear (NTA) in immigration court. We understand the complexities of the EOIR immigration court system and are here to zealously defend our clients. Regardless of where you are in the United States, our experienced team, led by former prosecutor, Kristian Chestnut, is ready to defend you today.

Contact Us for Legal Support

If you or someone you know is impacted by these recent changes, don't hesitate to reach out to the Chestnut Law Group for legal guidance and support. Ensure your defense is in the hands of a dedicated and experienced attorney who focuses in deportation defense. Contact us today to discuss your case.

Article by Kristian Chestnut, Esq.