Biden’s New Rules for Asylum Seekers (OPINION)

May 4, 2023
12:23 PM

President Joe Biden walks with U.S. Border Patrol agents along a stretch of the U.S.-Mexico border in El Paso Texas, Sunday, January 8, 2023. (AP Photo/Andrew Harnik)

HOUSTON — Last week the departments of State and Homeland Security (DHS) announced new rules for asylum seekers in what seems an effort to appease far-right xenophobia relating to the U.S.-Mexico border. The measures will likely create a more chaotic and deceptive environment for migrants seeking safety in the country that offers so much promise.

While the statement uses language that suggests a more humane approach, with “sweeping new measures to further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants,” those words are quickly followed by: “the United States will return to using Title 8 immigration authorities to expeditiously process and remove individuals who arrive at the U.S. border unlawfully.”

“Individuals who cross into the United States at the southwest border without authorization or having used a lawful pathway, and without having scheduled a time to arrive at a port of entry, would be presumed ineligible for asylum under a new proposed regulation, absent an applicable exception,” read the joint statement from DHS and the State Department.

The presumption of ineligibility is considered a violation of both a migrant’s human rights and U.S. law, which allows asylum seekers to cross between ports of entry and claim asylum once on U.S. soil—a process President Joe Biden promised to protect. But the Biden administration’s latest policy to address conservative panic over the end of Title 42 undermines that method and is seemingly a response to the Republican lies suggesting the U.S.-Mexico border is open.

Biden’s efforts to court conservative voters put him in a position to implement policies that mimic those of former President Donald Trump—albeit using different language. The latest announcement highlighted the basis for Biden’s policy: repeating Trump’s transit ban that denied the right to seek asylum in the United States unless migrants first sought asylum in pass-through countries such as Mexico.

Under Trump, the policy was considered unconstitutional. Under Biden, it may just be allowed if the administration satisfies federal court objections under the prior administration. Many had hoped that Joe Biden would make greater efforts to try and repair the damage done by his predecessor. Instead, in what many advocates consider a betrayal of the promises he made, we’re witnessing the expansion of many policies most liberals considered inhumane under Trump.

“Individuals who unlawfully cross the U.S. Southwest border… will generally be processed under Title 8 expedited removal authority in a matter of days; will be barred from reentry to the United States for at least five years if ordered removed; and would be presumed ineligible for asylum under the proposed Circumvention of Lawful Pathways regulation, absent an applicable exception,” reads the joint statement from DHS and State.

The Circumvention of Lawful Pathways encourages migrants to “avail themselves of lawful, safe, and orderly pathways into the United States,” or seek asylum in countries through which they travel. Under the guise of attempting to reduce the “reliance on human smuggling networks” exploiting asylum seekers, the rule uses language in a way that will presumably address the issues the courts had with the rule under Trump.

Similarly, the U.S. struck a deal with Mexico with the latter agreeing to accept tens of thousands of asylum seekers rejected by the United States just as DHS resumed deportation flights to Cuba. While many Cubans were angered by the sudden resumption of flights targeting Cubans with families that have settled in the United States, it’s worth noting that deportation flights for other asylum seekers, such as Haitians, never stopped. In fact, those flights are expected to increase.

“The United States, in coordination with our regional partners, has dramatically scaled up the number of removal flights per week,” read the statement. “That includes flights to Cuba, which resumed this week following a pause due to COVID-19. The number of weekly flights will double or triple for some countries. With this increase in removal flights, migrants who cross the U.S. border without authorization and who fail to qualify for protection should expect to be swiftly returned with at least a five-year bar to returning.”

There were also hints of further militarizing the border in the statement as well.

“The Administration is also ramping up coordination between state and local officials and other federal agencies to provide resources, technical assistance, and support, including through regular information sessions with stakeholders to ensure that the program is broadly understood and the funds are accessible,” the statement read.

Many Biden supporters will point to the good he’s tried to achieve using his executive powers. Yet, his continuation of Trump-era policies disguised as a more humane approach to the “good” they talk about is deceptive. For example, the Alternatives to Detention program allows migrants to await their asylum cases with an ankle monitor instead of in a detention facility. While that will be celebrated, getting to that point seems next to impossible with the most recent changes.

“Like single adults, families will be placed in removal proceedings, which will include expedited removal,” read the statement. “DHS is currently focused on utilizing its Alternatives to Detention program for families, including GPS monitors and enhanced supervision, such as curfews, and expanding case management services. More stringent measures may be used for those who do not comply. Like single adults, families with final orders of removal will be removed.”

Trump did these things, he was excoriated. Yet, when Biden does it, those same people make excuses. At the end of the day, partisan, hard-line supporters of one candidate don’t sound much different than the supporters of the other. When you find yourselves justifying inhumanity because you think your guy is better than the last one —who lowered the bar so low it’s barely visible— you might be on the wrong side of justice.

Just saying.


Arturo Domínquez is a first-generation Cuban American, anti-racist, journalist, and the publisher of The Antagonist magazine. Twitter: @ExtremeArturo