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Biden's new asylum rule would have 'minimal' impact on unauthorized border crossings

Migrants wait between border walls separating Tijuana, Mexico, and San Diego, to apply for asylum with U.S. authorities, Friday, April 12, 2024, seen from San Diego.
Gregory Bull
/
AP
Migrants wait between border walls separating Tijuana, Mexico, and San Diego, to apply for asylum with U.S. authorities, Friday, April 12, 2024, seen from San Diego.

The latest measure by President Joe Biden's administration to tackle the U.S.'s outdated asylum system would have minimal impacts on the high number of unauthorized crossings at the Southern border, analysts, immigrant rights organizations and anti-illegal migration advocates said.

On Thursday, the Department of Homeland Security announced a new rule intended to speed up the removal of some migrants ineligible for asylum.

Under the new rule, immigration officials at the Southern border could quickly reject an asylum claim if that person's criminal history is deemed to pose a threat to national security. In that case, the person would be subject to deportation.

This determination could happen during the 'credible fear' stage, within days of the migrant being encountered by immigration officials. This is the stage when migrants state that they could be persecuted, tortured or even killed if they are sent back to their countries.

Homeland Security Secretary Alejandro Mayorkas said the proposed rule "is yet another step in our ongoing efforts to ensure the safety of the American public by more quickly identifying and removing those individuals who present a security risk and have no legal basis to remain here."

"We will continue to take action, but fundamentally it is only Congress that can fix what everyone agrees is a broken immigration system," Mayorkas said.

Immigration policy analysts say the rule would hardly put a dent on the number of migrants crossing illegally, or the underlying factors for mass migration.

"The vast majority of the people arriving at the border right now are not going through (the) credible fear process," Theresa Cardinal Brown, the director of immigration policy at the Washington, D.C.-based Bipartisan Policy Center, told NPR. "So, the number of people (this rule) would apply to is small relative to the number of arrivals at the border right now."

It is unclear how immigration officers will determine immigrant claims.

Paul Hunker, who worked for the U.S. Immigration and Customs Enforcement as a chief counsel from 2003 to 2024 under Republican and Democratic administrations, said even ICE attorneys struggle to assess the severity of crimes committed by migrants seeking asylum.

Hunker also said making quick determinations at the border could also lead to mistakes in the assessment of credible fear claims.

That is because the new rule would empower other immigration officials to make those determinations, Hunker said, "People will be found to have committed particularly serious crimes when they really aren't."

U.S. Department of Homeland Security Secretary Alejandro Mayorkas speaks at a presser about immigration and the Trump-era expulsion policy Title 42 that is set to end next week on May 5, 2023 in Brownsville, Texas.
Michael Gonzalez / Getty Images
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Getty Images
U.S. Department of Homeland Security Secretary Alejandro Mayorkas speaks at a presser about immigration and the Trump-era expulsion policy Title 42 that is set to end next week on May 5, 2023 in Brownsville, Texas.

Criticism from both sides

Biden's proposal is not as sweeping as it was expected — or rumored — it to be.

Hunker thinks the new rule is one way for Biden to appear tougher on immigration.

For Republicans who have criticized Biden over his handling of the Southern border, Biden is doing too little.

Unauthorized crossings at the Southern border have decreased this year, but, during the last four years, the country has seen record numbers.

In a statement, Texas Gov. Greg Abbott called Biden's proposal "feckless."

Abbott has been one of the leading Republican governors suing the Biden administration over border security.

"Now, desperately grasping to salvage his failed presidency, President Biden attempts the most minimal action possible, hoping to mask the crisis he created," Abbott said.

Immigrant rights groups say the new proposed rule would not fix the issues at the border, or fulfill Biden's promise to fix the asylum system.

Raha Wala, the vice president for strategic partnerships and advocacy at the National Immigration Law Center, said the rule is part of long standing efforts to "further curtail the due process rights of asylum seekers."

"There's almost no evidence under the current system that any terrorists or criminals are getting in on any sort of systematic basis through the asylum system," Wala said.

He fears people with real asylum claims would get rejected arbitrarily.

"Asylum seekers need to be able to prepare for their case, to have counsel to withstand the incredible scrutiny and trauma that they experience on what is often a long and arduous journey after being persecuted," Wala said.

But for at least one immigrant rights advocacy group, Biden's rule is a positive development.

"It will change the process slightly," said Jennie Murray, the president and CEO of the Washington, D.C.-based advocacy group National Immigration Forum. "There's a considerable backlog, and if this (rule) can help us to shorten the years-long asylum backlog, and avoid long detention stays for this group of people, of course that's a net positive for the U.S. immigration system."

However, she said more needs to be done in terms of policy — not rules or executive orders — to address illegal migration.

"The fact that Congress is doing nothing and putting this pressure on the administration, who then has to issue a (rule) and hope it doesn't get hold up in adjudication is really perplexing," Murray said.

The fate of the proposal is also unclear.

A senior official with DHS told reporters Thursday they expect to publish the proposal on Monday, and provide for a 30-day public comment period. Officials hope a final rule would be implemented this year.

However, a similar proposal by former President Donald Trump in 2020 but was halted by a federal judge, and advocates expect Biden's rule to also be challenged.

Copyright 2024 NPR

Sergio Martínez-Beltrán
Sergio Martínez-Beltrán (SARE-he-oh mar-TEE-nez bel-TRAHN) is an immigration correspondent based in Texas.