WOLA: Advocacy for Human Rights in the Americas

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4 Jun 2024 | Q&A

The Futility of “Shutting Down Asylum” by Executive Action at the U.S.-Mexico Border

Today the Biden administration published a proclamation and an interim final rule curtailing the right to seek asylum at the U.S.-Mexico border. A White House fact sheet states that it “will make it easier for immigration officers to remove those without a lawful basis to remain and reduce the burden on our Border Patrol agents.”

What does the executive action do?

This “asylum shutdown” will deny, in most cases, the right to seek asylum for migrants apprehended on the U.S. side of the border with Mexico. It goes into effect at 12:01 AM on June 5, and will remain in effect until two weeks after Border Patrol’s weekly average of migrant apprehensions drops below 1,500 per day. That hasn’t happened since July 2020, in the early days of the COVID-19 pandemic; in fact, 58 percent of all months this century (172 of 296) have seen daily averages above 1,500.

Even then, the “asylum shutdown” would resume should the daily average again exceed 2,500 per day. It is over 3,500 per day right now; in fact, the U.S.-Mexico border has crossed that threshold in 110 of the past 296 months: 37 percent of this century.

By creating such difficult-to-meet numerical thresholds, and very narrow exceptions, this new “asylum shutdown” resembles the Trump administration’s 2018 attempt to ban asylum access between ports of entry with no numerical limits. Courts struck that provision down because the law states clearly that people on U.S. soil may request asylum without regard to how they arrived.

The executive action calls on U.S. authorities to deport asylum seekers from U.S. soil without affording them a chance to seek protection, making exceptions for unaccompanied children, severe trafficking victims, and those who can prove a very high threshold of fear of return. Since January 2023, as well as its own citizens, Mexico has agreed to accept a combined total of up to 30,000 cross-border returns of citizens of Cuba, Haiti, Nicaragua, and Venezuela every month. At the time of publishing, we have seen no mention yet of whether the government of Mexico will allow any returns beyond that.

Doesn’t this violate U.S. law?

Yes. The Refugee Act of 1980 (enshrined as Section 208 of the Immigration and Nationality Act, INA) states that any non-citizen on U.S. soil has the right to request asylum if they fear for their life or freedom “on account of race, religion, nationality, membership in a particular social group, or political opinion.” They must receive due process for their asylum request regardless of how they arrived in the United States. This law placed the United States in compliance with the Refugee Convention of 1951, which emerged after World War II when nations pledged never to repeat that era’s tragic turnbacks of people fleeing extermination campaigns. The executive action shuts down this legal right, based not on fleeing migrants’ protection needs but on a daily number. Like the Supreme Court’s 2022 Dobbs decision, this is a rollback of a human right granted during a previous generation.

Is this a new “Title 42?”

The proclamation and interim final rule are similar to the Title 42 expulsion authority that the Trump and Biden administrations carried out during the COVID-19 pandemic, between March 2020 and May 2023. Both administrations interpreted an old public health law as permitting U.S. border authorities to expel migrants, regardless of asylum needs, from the U.S.-Mexico border, which they did 2,912,200 times. Like Title 42, the executive action will remove asylum seekers without due process. It is certain to endanger many of them: during the Title 42 period, Human Rights First and border-area groups documented 13,480 violent crimes and abuses committed against migrants stranded in northern Mexican border cities. As confirmed recently by alarming reports from the border, crimes and abuse have persisted for many migrants waiting in Mexico for appointments scheduled in the U.S through the CBP One app.  As with Title 42, the executive action’s authority to remove asylum seekers rests on shaky legal ground: a federal judge struck down the expulsions program in 2022, though appeals were not yet resolved when the authority expired following the end of the COVID-19 public health emergency. Unlike Title 42, migrants will not be expelled: they will be processed and deported, which means that they would face harsher penalties, including a five-year ban on re-entry to the United States and possible criminal prosecution.

The Senate failed twice to pass a law trying to do this. How is this executive action legal?

This “asylum shutdown” was part of a “border deal” that emerged from negotiations between Democratic and Republican senators between November 2023 and February 2024. Faced with opposition from Republicans who felt it did not go far enough, and from some Democrats who objected to truncating asylum, this legislation failed twice to pass the Senate, in February and May 2024. Without this legislative underpinning, the proclamation and interim final rule do not have a clear basis in law. The administration is justifying the new authority by citing Section 212(f) of the INA, which allows the President to bar the entry of entire classes of non-citizens considered “detrimental to the interests of the United States.” However, courts have cast doubt on whether 212(f) can in fact be used to remove an asylum seeker already on U.S. soil and asking for protection, who is protected by Section 208 of the INA.

Doesn’t this rely heavily on Mexico’s cooperation?

Yes, and the timing of the announcement followed Mexico’s national elections on June 2, where voters chose Claudia Sheinbaum, from the ruling Morena party, as the next president; she will take office on October 1. It is impossible for the Biden administration to deport large numbers of non-Mexican citizens to their home countries. Immigration and Customs Enforcement (ICE) operates an average of about 130 deportation flights per month, 100 of them to nearby nations in Mexico, Central America, and the Caribbean. Flights to more distant nations are costly, and some countries prohibit or strictly limit the number of U.S. deportation flights that they receive. Instead of aerial deportations, policies that rapidly reject asylum seekers—like Title 42 and this new executive action—would rely on the Mexican government’s willingness to accept people expelled across the United States’ southern border, which is cheaper. As of early afternoon on June 4, we have seen no announcement from either the U.S. or the Mexican government about any change in Mexico’s posture toward deported non-Mexican migrants. We can expect the migrant population in Mexico’s violent border cities to swell again.

Will this, in fact, deter migrants?

Not only is it illegal and wrong  to “deter” people who might qualify for protection, it doesn’t work. Any change in border and migration policy brings a short-term drop in the number of migrants encountered at the U.S.-Mexico border. Migration fell, for instance, when Title 42 began and every time it was expanded; it also fell after Title 42 ended.

Changes trigger a “wait and see” effect: numbers plummet temporarily as migrants (and smugglers) evaluate how a new policy will deliver consequences, and in particular, which profiles of migrants it affects the most. This “wait and see” period fades quickly as migrants adapt to the new policy, and numbers recover. In the case of Title 42, migration numbers not only recovered, they spiked to historic levels: expulsions enabled repeat attempts to cross with no consequences, while migrants from distant countries realized that their chances of expulsion were minimal. Although harsher penalties for re-entry may deter some migrants, we have seen time and time again that people fleeing for their lives will continue to seek protection in the United States, regardless of the risks.

Instead of “shutting down” asylum, is there a better way to manage large numbers of arriving asylum seekers?

There is a better way, and the U.S. government should have been building it since the spring of 2014, the first time asylum-seeking children and families from Central America started turning themselves in to U.S. border authorities. WOLA and like-minded organizations have been pointing to this better way for years.

Solutions must address the reasons why people migrate, the response from governments in the region, and the shortcomings and lack of resources in the U.S. immigration system , rather than try to stop people from seeking asylum in legally dubious ways. A better policy rests on having the capacity to give asylum seekers meaningful due process in less time than our current, badly backlogged system takes. That means vastly improving the adjudication capacity of a system that today has over 4,500 immigration cases per judge. It means vastly expanding the ability to process asylum seekers who arrive at ports of entry, a function that does not need to be filled by armed, uniformed law-enforcement officers. And it means effective case-management programs to keep asylum seekers on track within the byzantine U.S. immigration system, along with expanded access to legal counsel.

Had such policies been put in place years ago, when the need was already evident, by now we wouldn’t be seeing panicked officials—people who should know better—proposing executive actions to “shut down” the human right to seek asylum at the border.