The president hopes his decision to restrict asylum will be enough to change the
By Ajish P. Joy
After dithering and digressing for several months, President Joe Biden finally acknowledged that his administration’s immigration policy could doom his election prospects in November, forcing him to bring back a restrictive asylum measure favoured by his predecessor Donald Trump. By an executive order issued on June 4, Biden has banned undocumented migrants from seeking asylum in the United States effective immediately. Routine asylum proceedings will restart only 14 days after the secretary of homeland security certifies that illegal border crossings are under 1,500 per day. The executive order will be activated again if the crossings go back up to 2,500. Unaccompanied minors, victims of trafficking, those facing imminent harm and acute medical emergencies are exempted from the purview of the order. All others will be deported to Mexico or their home countries.
"If an individual chooses not to use our legal pathways, if they choose to come without permission and against the law, they'll be restricted from receiving asylum and staying in the United States," said Biden. The executive order is based on section 212(f) of the Immigration and Nationality Act, which gives the president vast executive powers to limit all kinds of immigration. “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” says the law. As president, Trump had used it to ban travel from certain Muslim-majority countries in 2017, which Biden rescinded four years later.
Biden made it clear that he was forced to adopt the extraordinary measure because legislative efforts to address immigration concerns were blocked repeatedly by the Republicans, often at the behest of Trump. “The current situation is also the direct result of the Congress's failure to update an immigration and asylum system that is simply broken—and not equipped to meet current needs,” said the order.
The US Customs and Border Protection agency has revealed that illegal crossings at the Mexican border reached a new high of more than three lakh in December. And there are more than 30 lakh asylum applications pending before the US Citizenship and Immigration Services.
The latest move on the immigration crisis marks a shift to more extreme positions and has shaken the fundamentals of American asylum policy, which has always permitted migrants to seek refuge in the US, despite crossing the border illegally. It places the burden of proof on the refugees as they will have to present to the border security agents compelling evidence that they faced imminent danger in their home countries.
The order could have yet another unintended consequence of separating children from their parents/guardians. While illegal adults are banned from entering the US, their children will be admitted, but will be sent to detention centres from where they can apply for asylum or seek other means of legal protection. It could lead to parents sending their children alone to the southern border, like it happened between 2020 and 2023, when Covid restrictions banned undocumented immigrants, allowing entry only for minors.
It is clear that Biden’s decision to resort to the most restrictive asylum policy ever to be implemented by a Democratic president is dictated by electoral concerns. The immigration issue is hurting him badly as voters think Trump will do a better job in safeguarding the borders. According to a Gallup survey, immigration is now the biggest voting issue as nearly one-third of Americans believe that it is the most important problem facing the country. A Pew survey conducted earlier this year revealed that 80 per cent of voters were critical of Biden’s handling of the immigration crisis. Alarmingly for the president, most battleground states are acutely hawkish on the issue.
Biden is worried by the fact that his support among young Hispanics and African Americans--among his key support blocs in 2020--is diminishing fast and immigration happens to be the biggest reason behind that. Most surveys have shown that Hispanics now think that the Trump presidency helped the country with immigration and border security.
The Biden campaign hopes that a rightward shift on the asylum issue will help the president win back some support and align him with the thinking of a vast majority of voters. They also hope to corner Trump by reminding voters that it was the former president who instigated his supporters in the Congress to scuttle a bipartisan bill to reform the asylum process, which would have given the president wider powers to close the border and allocated more funds for border protection.
The Trump campaign and the Republicans said the new measures were too little and too late. “Let’s be clear, Biden’s executive order is for amnesty, not border security,” said Trump campaign spokeswoman Karoline Leavitt. Trump wrote on social media that Biden had surrendered the southern border and was now pretending to finally do something about it. He said the new executive order would lead to an increase in child and sex trafficking. House Speaker Mike Johnson said the executive order on border security was weak and nothing more than window dressing, while Senate Minority Leader Mitch McConnell said Biden was trying to save face before the election. "This is like turning a garden hose on a five-alarm fire, and the American people are not fools. They know that this play is too little too late."
While criticism from the Republicans were expected and understandable, there is no unanimous support for Biden’s measure from his own party. While Centrist Democrats and leaders from Republican-leaning areas welcomed the order, progressives, leftist-liberals and those representing border areas have come out against it. House Progressive Caucus co-chair Pramila Jayapal said Biden could not win in November by trying to match the Republican march to the right. Coming after the rupture within the party on the Gaza war issue, a bitter intra-party feud on immigration could make Biden’s position untenable in November. The president and his campaign team hope that the progressives would fall in line grudgingly because the alternative is none other than Trump.
Pro-Democratic activist groups and NGOs are likely to mount legal challenges against the order. The American Civil Liberties Union has said that it will fight the order in court. The ACLU had previously won a legal challenge against a 2018 Trump order, blocking refugees who entered the country illegally from applying for asylum. Following the ACLU petition, Judge Jon S. Tigar of the United States District Court in San Francisco ordered the Trump administration to process asylum claims from migrants no matter where or how they entered the United States.
Biden, meanwhile, hopes that his uncharacteristic shift to the far right on asylum policy brings him closer to the position of a majority of American voters. After all, everything is fair in love and war, and an election fight against Trump is nothing short of a war.
