Biden’s Bold New Immigration Order Shakes Up Asylum Rights

Last Updated: May 1, 2024By

Biden’s Bold New Immigration Order Shakes Up Asylum Rights

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On Tuesday, Joe Biden signed a tough new immigration order that suspends asylum rights, making it clear that “securing the border” is a key part of his re-election campaign.

Chaos at the Border

This new policy is set to create a lot of confusion and hardship for people seeking protection in the United States at the southern border.

The executive order announced on Tuesday temporarily revokes the long-standing promise that anyone on U.S. soil can ask for refuge. Starting at 12:01 am on Wednesday, the government can quickly return people caught at the border to Mexico or their home countries if a daily number of crossings is exceeded, leaving them with little time to apply for asylum.

On Tuesday afternoon, lawyers who help people at the border were scrambling to understand how the order would work since detailed regulations hadn’t been released yet. They warned that it would create panic and chaos in the short term. People fleeing violence and turmoil in their home countries aren’t likely to stop trying to enter overnight.

“It’s not going to reduce or stop people from coming,” said Monika Y Langarica, a senior attorney with the Center for Immigration Law and Policy in San Diego. “But it will definitely create confusion, disorder, and put people’s lives at risk.”

Comparing to the Trump Era

Biden’s order is a big change for a president who campaigned on promises to rebuild the asylum system and adopt more humane immigration policies. But with a record number of people seeking asylum at the border last year, and after Republicans blocked immigration reforms in Congress, Biden has introduced his most drastic migration restrictions yet.

To limit the number of people who can apply for asylum, Biden is using the same mechanism that Donald Trump used during his presidency: section 212(f) of the Immigration and Nationality Act.

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Officials in the Biden administration have emphasized that the new measures don’t mean a return to Trump-era policies, like separating children from their families or banning people from certain countries based on their religion.

Biden himself has rejected any comparisons.

“I will never demonize immigrants,” he said at the White House on Tuesday. “I’ll never separate children from their families at the border. I will not ban people from this country because of their religious beliefs.”

Trump, who often made extreme claims about immigrants, tried to dismantle the U.S. asylum and refugee system during his presidency. He has also proposed an even harsher anti-immigrant agenda for a potential second term, promising mass deportations and detention camps.

Biden has slowly restored some legal immigration pathways that Trump had dismantled. There are also exceptions to the executive order, including for unaccompanied children.

But in the 40 years since the U.S. established its asylum system, no other Democrat has suspended people’s ability to seek refuge in the U.S. This is the first time there has been a broad numerical cap on people seeking asylum, according to lawyers.

Tougher Penalties

The new executive order states that people caught and turned away under this policy won’t be able to enter the U.S. for five years. This is a tougher penalty than what was used during Trump’s Covid-19-era migration restrictions. Also, people caught near the border will need to explicitly state their fear of persecution if deported, rather than being asked by immigration officials, which was the practice for decades. This “shout test” could turn back those who might still qualify for protection. Those who do express fear will face tougher standards, needing to prove they might face torture or death if they return home.

Langarica noted that the Department of Homeland Security’s fact sheet on the new policies was different from the White House’s and the language in the executive order. “This reminds me a lot of the Trump era, where we saw big policy changes without enough notice,” she said.

Humanitarian Concerns

Human rights advocates say Biden’s order, part of a series of policy changes aimed at reducing access to the U.S. asylum system, is unlikely to reduce arrivals at the border.

“It’s not possible to completely shut down the border,” said Faisal Al-Juburi from Raices, an immigrant support group in Texas. “Saying we’re ‘shutting the border’ is more of a PR move. When we look at 30 years of deterrence practices, we know they don’t work long term. People just take greater risks.”

High levels of border crossings have happened before, including in the 1980s and mid-2000s. Now, more people are presenting themselves to authorities, hoping for protection.

Lawyers and advocates say policies like Biden’s executive order force families in vulnerable situations to make desperate choices. “We expect to see more people in desperate situations, maybe even separating from their children and sending them across the border alone,” said Alvaro Huerta from the Immigrant Defenders Law Center.

Already, the U.S.-Mexico border is the world’s deadliest migration land route, with people often dying of dehydration and hunger while crossing the desert.

“This is a cynical move by the administration to appear tougher on border security, but it will shut down lifesaving options for asylum seekers,” said Erika Pinheiro, executive director of Al Otro Lado, a non-profit helping asylum seekers at the border.

Legal Challenges Ahead

The American Civil Liberties Union plans to challenge the order in court, but it’s unclear how easily the policy can be overturned and whether it will remain in effect during the legal battles.

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