Biden Is Gutting Asylum. The Right Still Called It “Mass Amnesty” for “Illegals.”

A Democrat president has taken up Trump-like bans to crack down on migrants. For the GOP, it isn’t enough.

Stephen Miller, a former aide in the Trump White House, speaks during a news conference.Tom Williams/CQ Roll Call/AP

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Earlier this week, the Biden administration officially announced a long-anticipated border crackdown. The executive action—which relies on the same presidential authority former President Donald Trump invoked to enact an entry ban on travelers from Muslim-majority countries—circumvents a key provision of US law: The legal right to seek asylum, regardless of where or how a person enters the country.

Under Biden’s order, with narrow exceptions, only migrants coming to official ports of entry will qualify for asylum after encounters at the border reach a certain threshold. This may sound wonky. But it is in line with what Biden vowed to try to do as the November election approaches: shut down the border “right now.”

And, still, not even a Democratic president gutting asylum has placated the anti-immigrant fearmongers on the right.

Even before Biden gave his speech about the new border proclamation, Republican Sen. Josh Hawley of Missouri was live on Fox News calling the measures “mass amnesty” for “illegals.” He was echoed by Stephen Miller, a former senior adviser to Donald Trump and president of the “lawfare” America First Legal group, who wasted no time cherry-picking sections of the executive order and sharing them without context to baselessly claim the new rule gives “fast-pass entry to unlimited numbers of fighting-age” migrants. “This border EO makes mass migration permanent,” Miller wrote on X.

Not to be outdone, House Speaker Mike Johnson—who declared the now-defunct bipartisan senate border deal “dead on arrival”—called it “window dressing” and said President Biden is “allowing thousands of illegals to cross because he wants to turn them into voters.”

None of this is true. The proclamation halts the entry of migrants between ports of entry when apprehensions at the border average 2,500 per day over the course of a week. The suspension can only be lifted 14 days after that number drops to a seven-day average of 1,500 daily encounters, meaning it would be in effect for at least 21 days. How could that not be considered a harsh enforcement measure?

Yes, the rule allows for exemptions for unaccompanied minors, victims of “severe form of trafficking,” as well as in some cases based on “operational considerations” and “urgent humanitarian” circumstances. And it doesn’t affect the processing of claims from asylum seekers through the CBP One cellphone application at ports of entry. But we are talking about a fundamental violation of asylum law and the Refugee Convention on the part of the Biden administration to appease right-wing anger over migration.

“President Biden’s action sets a dangerous international precedent as a first-of-its-kind numerical cap on asylum,” Amy Fischer, director of refugee and migrant rights at Amnesty International USA, said in a statement, “limiting the number of people who can claim asylum in the United States.”

Plus, this is far from the first restriction. The Biden administration has already limited access to asylum with another ban known as “Circumvention of Lawful Pathways.” It created a “presumption of ineligibility” for asylum if migrants can’t show that they made an appointment on the flawed CBP One app to come to a port of entry, had previously sought and been denied protection in another country on their way to the United States, or qualified for narrow exceptions under “exceptionally compelling circumstances.”

Sounds complicated? Well, the effect is simple. In the first few months of the asylum ban, 86 percent of migrants were deemed ineligible. “It’s very hard to go through what the administration has termed a lawful pathway,” Melissa Crow, director of litigation at the Center for Gender & Refugee Studies (CGRS), explains. “People who are desperate have no choice but to try to cross between ports of entry.”

Migrants and asylum seekers, many fleeing horrific situations and threats to their lives, have been reduced to political footballs

This new regulation will further heighten the obstacles and speed up the removal of migrants with potentially legitimate claims for asylum. Per current procedures, Customs and Border Protection (CBP) officials ask would-be asylum seekers if they fear persecution in their home countries. If the answer is positive, they are referred to an initial screening with an asylum officer. This is known as the credible fear interview. Now, in order to get to that point, migrants subjected to the ban will have to pro-actively voice their intention to seek asylum or claim fear of persecution without having been asked, in what is commonly known as the “shout test.”

A recent study by CGRS found that reliance on this “manifestation of fear” test resulted in asylum seekers being returned to harm. In the written regulation, even the Department of Homeland Security acknowledges that the new procedure “could result in some noncitizens with meritorious claims not being referred to a credible fear interview.”

Yes, there is more. Now, migrants will also be screened for lesser forms of protection—not asylum—and need to meet a “substantially higher standard” to avoid deportation.

Altogether, these changes represent a significant blow to longstanding guarantees of protection for asylum seekers coming to the United States. “The administration’s goal seems to be to rush people through the process as quickly as possible and move them out,” Crow says. “I’m concerned with our government upholding our legal and international treaty obligations that provide access to protection for people who are fleeing persecution.”

In a statement, the United Nations Refugee Agency (UNHCR) said the measures would “deny access to asylum for many individuals who are in need of international protection,” and called on the United States to “reconsider restrictions that undermine the fundamental right to seek asylum.”

Advocacy groups and immigration experts are also skeptical that, given the reality of DHS’s limited resources and capabilities, these changes will make a dent in the numbers at the border. Instead, David J. Bier with the libertarian Cato Institute writes, it “will only result in more deaths of migrants who think the only way to enter is by evading Border Patrol—by hiding in deserts, swimming the Rio Grande River, or slipping in surreptitiously into the back of tractor‐​trailers.”

The regulation, which he calls a “legal and moral abomination,” is “both bad policy and bad politics.”

But this is where we have landed on the debate over migration. Migrants and asylum seekers, many fleeing horrific situations and threats to their lives, have been reduced to political footballs—outright vilified as “invaders” and “criminals.” A Democratic administration seems undisturbed by the prospect of implementing policies it once harshly condemned when carried out by its predecessor. And even one of the worst crackdowns on asylum in recent memory isn’t strict enough for Republicans. One has to wonder how much damage these policies would have to cause—and likely will—to change the conversation.

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