Asylum law and Biden's migrant policy changes: Here's what to know

Migrant services in Pima County and similar nonprofits around the country are wondering if the number of people they serve will increase and even become unmanageable when Title 42 ends on May 12.

The U.S. has used that public health policy to quickly expel millions of migrants from the country since the beginning of the COVID pandemic.

While many factors could affect what happens, a major one is a proposal from the Biden administration that could go into effect the day Title 42 enforcement stops, with the intention of cutting back on the number of migrants who enter the country without permission to seek asylum.

The Biden administration proposed the new rule in anticipation of a potential surge of migration at the U.S.-Mexico border when Title 42 ends. The rule says migrants would be considered ineligible for asylum if they enter the U.S. without applying for asylum before coming to the border, or if they traveled through another country to get to the U.S. and didn’t apply for asylum there.

Along with expanded pathways to asylum, the U.S. expects this rule would reduce the number of migrants crossing the border without prior authorization, and in turn, reduce reliance on human smuggling networks, according to the proposal.

This latest proposal received more than 50,000 public comments. Many experts and humanitarian aid groups say the rule should not go into effect and that it subverts existing asylum law. But rules on who gets to claim asylum, and how, are often nuanced and wade into a patchwork of domestic and international laws, executive orders and legal rulings.

The current proposed rule is similar to policies limiting asylum pathways that were issued by the Trump administration and repeatedly struck down by federal courts as unlawful, says Vicki Gaubeca, associate director at Human Rights Watch, a research and advocacy group.

“All of those were found to be unlawful in the court system,” she said. “So there’s really no reason why this one wouldn’t either. It’s ironic how on one side, we’re talking about the rule of law, and yet the U.S. government has no compunction about violating its own law.”

Domestic and international laws

The main reason many say this rule can’t be lawful is because the United States already follows both domestic and international laws that guide people’s right to seek asylum in the country.

The laws basically provide asylum to people who demonstrate credible fear of persecution under five different categories, Gaubeca says, including race, religion, nationality, membership in a particular social group, or political opinion.

The Refugee Act of 1980 incorporated into U.S. law principles from previous international treaties that the U.S. both played a role in and agreed to. People have a right to apply for asylum regardless of the way they enter the United States, Human Rights Watch said in its comment on the proposed rule.

All that needs to be established is the perceived fear or credible fear, Gaubeca says, so for President Biden to say that people need to have an appointment and come through a port of entry contradicts existing asylum law.

“There is no law, domestic or international, that requires that,” she said. “And in fact, it contradicts asylum laws, both domestic and international.”

Discouraging irregular crossings

But not all experts agree with the way Gaubeca and Human Rights Watch assess existing law and the new rule, highlighting one of the complications to finding a solution to irregular migration.

The proposed rule is meant to disincentivize people from crossing the border irregularly between ports of entry, which is where the huge numbers have been, says Muzaffar Chishti, senior fellow at the Migration Policy Institute, a nonpartisan think tank.

“Under international law, there is no right to march to the U.S. to get asylum,” he said, adding that international law only states that people can’t be forced to return to their country of origin.

About 80% of the more than 2.7 million apprehensions by U.S. border officials at both borders, those with Mexico and Canada, in fiscal year 2022 were between ports of entry.

“This is an attempt to create some order in a disorderly situation, and I don’t see what’s wrong with that,” Chishti said.

He says this proposal is different from Trump administration policies. One Trump policy made someone ineligible if they came through Mexico, whereas this proposal gives people a specific way to apply for asylum, he says.

“The idea now — and this is for the first time in our history and this is breaking new ground — is that we are incentivizing asylum seekers to come to the port of entry and disincentivizing them to try to cross between ports of entry,” he said.

Judges deciding immigration law

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Many experts and border officials agree there needs to be immigration reform to deal with mass irregular migration to the country.

In Tucson, the Casa Alitas Welcoming Center, run by Catholic Community Services, has been offering migrant services since 2014, and the various policy changes have had temporary effects on numbers, but migrants continue to come and the numbers generally increase.

The center is currently receiving about 400 to 500 migrants a day, but officials estimate that could increase to as many as 1,500 people a day when Title 42 ends.

It will take comprehensive immigration reform to have a lasting impact, says Teresa Cavendish, director of operations for Catholic Community Services of Southern Arizona.

In the absence of immigration reform enacted by Congress, the U.S. increasingly relies on executive power to set immigration policy.

Executive actions are less permanent than legislation. They can be undone by a future administration and are regularly halted by legal challenges, meaning decisions on immigration law often fall to appointed judges rather than elected bodies, according to a Migration Policy Institute article co-authored by Chishti.

The current proposed asylum rule will likely get challenged in court as well.

Demographic changes, outdated policies

While the proposed rule could lend some order, it doesn’t solve the problem, Chishti says.

“The nature of the flow at the border has radically changed,” he said. “Our border policy today, our laws, our policies, our infrastructure, our resources are built for a border challenge of 2008 when the border challenge was essentially single Mexican males trying to come to the U.S. for a job and sneaking their way in.”

In fiscal year 2022, 72% of people apprehended were single adults, and 28% — nearly 773,000 people — were in a family unit or an unaccompanied minor. About 49% were from Mexico or the Northern Triangle of Guatemala, Honduras and El Salvador.

The same policies and processing infrastructure that might work for single adults don’t with families and children. There are different types of challenges in housing people, treating their physical, psychological, medical and legal needs, Chishti says. And the laws around handling immigration issues involving families are different.

In addition, the radical demographic change in the nationalities of people coming to the border creates a different challenge, Chishti says.

“Frosty diplomatic relations between the United States and the governments of Cuba, Nicaragua and Venezuela have complicated deportations to those countries. Increasing numbers of migrants from those countries have arrived at the U.S.-Mexico border seeking U.S. asylum amid economic and political turmoil at home,” he said, adding that on top of that, Haiti currently does not even have a functional government.

As the number of migrants from those four countries increased, Biden began a policy in October of immediately expelling more migrants from Venezuela, under Title 42, while simultaneously creating more legal pathways for them to enter the United States.

He announced an expansion to this policy on Jan. 5, to include migrants from Nicaragua, Cuba and Haiti.

Another change is that most of the migrants coming to the border in recent years are seeking asylum, Chishti says. When people are seeking asylum, there are different legal obligations that kick in, both under domestic and international laws. An asylum claim takes time and is also time sensitive.

Currently, the immigration courts have backlogs of 2.2 million cases, so a case could take seven years to be heard, Chishti says.

Last year the Biden administration issued a rule where asylum cases would be sent to an asylum officer prior to a judge. The officers are country specialists, less adversarial than a judge, and can make an initial determination faster, Chishti says.

“If we move from immigration judges hearing cases to asylum officers, I think we will speed up this process. And that process should, in our mind, finish in one year,” he said. “ … That will lend us the needed efficiency in our system, where real deserving people get it fast and not deserving get removed.”

There needs to be leadership to significantly change the way we’re doing things at the border, says Gaubeca, with Human Rights Watch. Some of the money used on enforcement measures could be better spent on humanitarian aid measures like more welcoming reception centers that are staffed by trauma specialists and asylum officers “to create a system that’s rights respecting and humane,” she said

“The reality is that for the last three decades, the only approach we’ve taken at the U.S.-Mexico border, by and far, has been to spend billions of dollars on punitive and carceral measures,” she said. “And we’ve basically abdicated from our responsibilities in relation to doing any kind of immigration reform or even following our own asylum/refugee laws.”