Biden's Changing The Asylum Law Without Congress' Help
by John Lawrence
The asylum law in effect says that any alien who enters the US legally or illegally may apply for asylum. This incentivizes aliens to enter illegally, and, if caught, to simply request asylum. Since they would have to go before a court to determine if they should get asylum and the court is backed up for years, entering illegally and requesting asylum is a guarantee of at least currently five years in the US during which time they could attempt to remain hidden and not show up at court. The reality is that only about 40% of asylum seekers that show up for their court date actually get asylum. The rest are deported. According to U.S. and international law, a claim of persecution must be made based on one of five “protected grounds”: race, religion, nationality, political opinion, or membership in a particular social group. Poverty, scarce economic opportunities, displacement caused by natural disasters or a desire to reunite with family are not grounds for asylum under U.S. law. Here's the actual law:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
In order to dissuade asylum seekers from just showing up in a disorderly fashion en masse at the southern border, the Biden administration has been setting up a system to encourage people to apply for asylum in an orderly manner. This includes applying at a port of entry or applying from a country in south or central America. Also,they are disincentivized from coming across the border illegally because, if they do, they are ineligible for asylum for 5 years. Here's the new rule:
SUMMARY: The Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) are issuing a final rule in anticipation of a potential surge of migration at the southwest border (“SWB”) of the United States following the termination of the Centers for Disease Control and Prevention’s (“CDC”) public health Order. The rule encourages migrants to avail themselves of lawful, safe, and orderly pathways into the United States, or otherwise to seek asylum or other protection in another country through which they travel, thereby reducing reliance on human smuggling networks that exploit migrants for financial gain. The rule does so by introducing a rebuttable presumption of asylum ineligibility for certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel. In the absence of such a measure, which would apply only to those who enter at the southwest land border or adjacent coastal borders during a limited, specified date range, the number of migrants expected to travel without authorization to the United States would be expected to increase significantly, to a level that risks undermining the Departments’ continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system, in the face of exceptionally challenging circumstances. Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the rule to lead to a reduction in the number of migrants who seek to cross the SWB without authorization to enter, thereby reducing the reliance by migrants on dangerous human smuggling networks, protecting against extreme overcrowding in border facilities, and helping to ensure that the processing of migrants seeking protection in the United States is done in an effective, humane, and efficient manner. In addition, the Departments are requesting comment on whether applicability of the rebuttable presumption should be extended to noncitizens who enter the United States without documents sufficient for lawful admission during the same temporary time period at a maritime border.
DATES: Effective date: This rule is effective on May 11, 2023.
This document is scheduled to be published in the Federal Register on 05/16/2023 and available online at federalregister.gov/d/2023-10146, and on govinfo.gov
The Biden administration is solving the border crisis without the help of Congress in a way that's sure to be challenged in court, but in the way that Congress would actually probably solve it if they were inclined to act and reform immigration laws. Biden should get a lot of credit for going ahead without Congress which is a sewer of conflict, stagnation and malfunction. An orderly process for applying for asylum has been created by the Biden administration which should discourage masses of people showing up at the southern border. For this they deserve much credit.