Biden’s Border Action and Its Consequences for Migrants
Written by Hussain Ali Haidari
Photo Credit: Christian Torres | Anadolu via Getty Images
This article is issue 89 of our Newsletter, New Home. Subscribe here.
On Tuesday, June 4, President Joe Biden signed a regulation that will bar asylum for the large majority of people entering through the southern border who cannot qualify for narrow exceptions. The restrictions take effect when the seven-day average of daily border crossing exceeds 2,500– which happened immediately on June 5 – and may only be terminated 7 days after there has been a 7-consecutive-calendar-day average of less than 1,500 encounters.
“These actions will be in effect when high levels of encounters at the Southern Border exceed our ability to deliver timely consequences, as is the case today,” a fact sheet released by the White House on June 4th stated. Restrictions at the border immediately kicked in and, due to the volume of people seeking entry to the United States at any given time, they are expected to remain in place for some time.
The White House claimed this strategy will “make it easier for immigration officers to quickly remove individuals who do not have a legal basis to remain in the United States.” The order is in direct contradiction to existing federal law, which states that any person on US soil is permitted to seek asylum regardless of how they entered the country, and international law, which bars the US from sending people to face persecution and torture in the country which they are fleeing from.
“Frankly, I would have preferred to address this issue through bipartisan legislation because that’s the only way to actually get the kind of system we have now that’s broken, fixed,” Biden said after signing the order.
What Does This Mean for Migrants?
With certain exceptions, migrants crossing the border between ports of entry will be barred from seeking asylum when border encounters rise above 2,500 per day over a 7-day period. Migrants expelled during this period could be barred from reentering the United States for 5 years and may face criminal prosecution.
Exceptions are meant to be made for people with visas, parole, UCSs, permanent residents, and individuals with CBP One appointments. Additionally, unaccompanied children, victims of human trafficking, and individuals facing life threatening emergencies, such as severe medical emergencies, kidnapping, torture, murder, and other serious forms of harm – at the time of entry – may be permitted as exceptions.
It is unclear how exceptions will be implemented as reports coming from the border already reveal people being summarily deported without the typical fear screenings or asylum hearings. In some cases, people intercepted by Border Patrol officers have simply been told “the border is closed” and turned away, with no opportunity to express fear of return to their country of origin. This treatment is in violation of US and international law and is already subject to litigation at the time of writing this article.
The cap on entries is meant to be discontinued 2 weeks “after the Secretary makes a factual determination that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters”. “These actions are not permanent,” the White House stated. “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.”
On Tuesday, June 4 the American Civil Liberties Union announced that it plans to sue the Biden administration over this action. This suit has since been filed and is requesting a quick resolution in the courts.
“The Biden administration just announced an executive order that will severely restrict people’s legal right to seek asylum, putting tens of thousands of lives at risk,” the organization stated in a post on X. “This action takes the same approach as the Trump administration’s asylum ban. We will be challenging this order in court.”
“The solution to overwhelmed courts is not to dispense with our values and our due process of law. It’s actually to make sure that the courts can hear the claims of everybody in an expeditious way. That takes personnel. It takes staffing. It takes resources,” said Donna Lieberman, with the New York Civil Liberties Union.
While this illegal policy remains in place, migrants turned away at point of entry are exposed to extreme danger, exploitation, and violence. In 2022, Human Rights First tracked over 13,480 reports of violent attacks on migrants and asylum seekers who had been blocked from entry at the border by Title 42 restrictions. Migrants fleeing for their lives may feel compelled to cross borders through dangerous or remote regions outside ports of entry, an endeavor that cost 853 migrants their lives in 2022 alone.
Afghan refugees who seek entry into the US via its southern border often fear persecution at the hands of the Taliban due to being members of religious or ethnic minority groups, or due to their political activity or affiliations. Many have been victims of violence or witnessed violence against their loved ones in Afghanistan. They then make a perilous journey trekking through the wilderness of Brazil, Colombia, and Panama – passing through the notorious Darien Gap – then crossing through Costa Rica, Nicaragua, Honduras, and Guatemala before arriving at a border city in Mexico. Those who have made the journey recall dangerous conditions, scarce resources, acts of violence, and loss of life. Human Rights Watch has reported kidnappings, assaults, robberies, and other violent incidents against migrants along this route at the hands of criminal groups. Individuals denied entry under the current conditions are effectively stranded in Mexico – which currently has extremely limited services to offer Afghan refugees – as they wait months to secure a CBP appointment. Others who take the risk to smuggle themselves across the border may end up in federal criminal proceedings, even if they qualify for asylum.
Human rights and immigrant advocacy groups strongly urge cooperation between North and South American governments to adopt more humane policies towards migrants and asylum seekers and develop immigration pathways that protect migrants from violations of their legal and human rights.