Biden's executive order restricting migrants' asylum applications is a ban in all but name

Immigration is one of the most pressing issues in the current presidential election. Amidst this context, President Joe Biden has recently released an executive order that places restrictions on migrant applications for asylum. This limitation will likely further amplify the discourse around immigration in American politics.

It is important to note that the number of undocumented migrants trying to cross the U.S.-Mexico border has been progressively rising. In December 2023, Border Patrol arrests at the U.S.-Mexico border reached 249,785, a 13% increase from December 2022 (222,018). To shed light on the new development, Jean Lantz Reisz, an immigration law scholar at the University of Southern California, offers four key insights into its effects and implications.

  1. The executive order is essentially an asylum ban for most migrants who cross the border without a visa. It comes into effect when the average daily crossings hit 2,500. This threshold has been surpassed for each day of Biden's presidency. Essentially, this means that undocumented immigrants will not be able to use the harm they face in their home countries as a basis to legally remain in the United States. However, they may be eligible for other forms of legal protection from deportation if they fear torture or persecution in their homeland. The trouble is that migrants will have to present evidence of danger to U.S. border and immigration authorities, which they typically won't have. This means they won't be given any protection and will be deported.
  2. This ban could lead to an increase in the number of unaccompanied minors attempting to cross the border. Children who are under 18 and cross the border without a parent or guardian will not be subject to the asylum ban. They will be detained and placed in deportation proceedings but will still be allowed to apply for asylum or other immigration protections. This could incentivize some parents to send their children alone, hoping they will have a chance at remaining in the country.
  3. Biden's order is similar to Trump's immigration approach. Biden is relying on an immigration statute called 212(f), which gives the president broad authority to restrict the entry of certain noncitizens if it is deemed to be detrimental to U.S. interests. This is the same law that former President Donald Trump cited when he implemented a travel ban for temporary suspension entry of noncitizens from seven countries, including five Muslim-majority states, in 2017.
  4. Implementing the executive order will be challenging. Biden's ability to reduce the number of migrants crossing the border without proper authorization hinges on several factors. Biden will require Mexico's cooperation to turn back non-Mexican citizens it does not accept, and U.S. immigration agencies are already overwhelmed by the current influx of migrants. The deportation process has become increasingly inefficient over time with a massive backlog in immigration courts.

Ultimately, while Biden's executive order may be a deterrent for some migrants, it may not be as effective in practice given the various challenges in implementing it.

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