It is also questionable whether it will achieve its political goals.
Earlier today, President Biden announced a new policy severely restricting migrants’ rights to claim asylum after crossing the southern border. Reason immigration writer Fiona Harrigan has a helpful summary of its provisions:
“The entry of any noncitizen into the United States across the southern border is hereby suspended and limited,” said Biden’s order. When border encounters between ports of entry hit an average of 2,500 per day over a seven-day period, migrants will no longer be allowed to seek asylum unless they qualify for a narrow exception or request an appointment at a port of entry through an app (a process that has been glitchy and cumbersome). The restrictions will lift two weeks after the daily number of encounters between ports of entry falls below 1,500 on average over a seven-day period.
The policy does include exceptions for unaccompanied minors and migrants who CBP officers grant permission to enter “based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter.”
But the new policy would bar nearly all other migrants from applying for asylum, including those who are fleeing violence and persecution of the kind that asylum is supposed to protect against.
It’s worth noting that Biden already adopted a highly restrictive “Trump-lite” asylum policy last year, leading to a legal challenge in which a federal court ruled against it. As Judge Judge Jon Tigar of the Northern District of California point out in his opinion, the plain text of the Refugee Act of 1980, “provides that any noncitizen who arrives in the United States, ‘whether or not at a designated port of arrival’ and ‘irrespective of [their] status, may apply for asylum.'” Similar (though even more restrictive) policies were struck down by courts under the Trump Administration, including in a decision written by prominent conservative Judge Jay Bybee.
Judge Tigar’s ruling was stayed by the US Court of Appeals for the Ninth Circuit, which still has not reached a final decision on the case. This new policy is also likely to be challenged, and there is a high likelihood it too will be struck down by courts.
