Home News Borderline gamble: Biden’s immigration order walks a fine line

Borderline gamble: Biden’s immigration order walks a fine line

As Congress wouldn’t act (because Donald Trump told Republicans to abandon their own negotiated border deal) President Biden has issued a long-awaited executive proclamation. Asylum applications will be shut down once an average of 2,500 or more people over seven consecutive days claim asylum at the border, whether having crossed illegally or gone legally to a port of entry.

Given that this trigger was already reached before the start of the new rule on midnight Tuesday night, the ban will take effect and remain in place until the numbers come down, building on the groundwork of Trump-era asylum restrictions.

We didn’t love the Senate deal that was painstakingly hashed out over much of the last year, but at least it was an attempt by bipartisan legislators to move the issue forwards after decades of inertness and punting regulation to the executive. Now we have the executive yet again stepping in, and Congress can’t complain.

This is only one of the tools in Biden’s executive toolbox, and he’s only reaching for it because the federal government has stubbornly refused to use many of the others. Throughout this entire wave of arrivals, the White House had access to expansive refugee resettlement infrastructure, but chose not to redeploy it for asylum seekers.

Asylum seekers have their cases play out while they’re in the United States, and may culminate in either permission to remain and, eventually, naturalize, or an order to leave the country. This limbo makes pols hesitant to provide too much support, lest it attract additional migrants or too successfully settle those who are on a path to removal anyway.

Yet the migrants have come anyway, leaving states and municipalities to pick up the slack; New York City has aided more than 200,000, with scant support from Albany and Washington. The White House refusal to act to soften the landing has done nothing to slow the flow and been a disaster politically, as voters blame the ensuing struggle to keep up on the president anyway.

In effect, Biden boxed himself in here, and while we can hardly fault him for reaching for a more top-shelf solution, which is popular with voters and our mayor and governor. But we shouldn’t forget that this one has some significant possible problems.

It is true that not everyone qualifies for asylum, and it is true that many of the folks that have come in over the past two years will eventually be turned down, and so the efforts to fully resettle them can be seen as folly. But they’re still going to be around for a number of years, and despite what some humanitarian immigration opponents might have you believe, there are some who are really facing persecution back home and who did indeed deserve to stay.

For this fiscal year so far, of more than 40,000 asylum decisions reached in immigration courts, just under half have been grants of asylum. The rates in NYC are much higher; of about 3,500 asylum decisions made this fiscal year, just under 3,000 have been asylum grants, meaning a judge found that the applicant had cause to show they qualified.

People intuitively want drastic actions for what are perceived to be drastic circumstances, but in this case we could be preemptively excluding 85% of qualified applicants in the state. We should find a better way, with Congress leading the charge.


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