Biden’s Upper Limit

The United States is significantly tightening its asylum laws. Joe Biden is reacting to pressure from Donald Trump and the Republicans. But can he keep his promises?

Sometimes, politics can move quite quickly. Joe Biden announced new restrictions on the right of asylum early Tuesday afternoon East Coast time. Shortly after midnight, large sections of the border with Mexico were closed. Not physically, of course, but politically, and most of all, symbolically.

The president signed an order on Tuesday that heavily restricts the right of asylum after a set number of illegal border crossings. If this number exceeds 2,500 seven days in a row, authorities are authorized to immediately deport people seeking asylum encountered outside official border crossings back to Mexico or directly to their country of origin. This continues until the number remains consistently fewer than 1,500 asylum-seekers a day.

“If the United States doesn’t secure our border, there is no limit to the number of people who may try to come here,” Biden said when he announced the plan. Standing next to the president, lined up like a human wall, stood the governor of New York, where a particularly large number of refugees have ended up, members of Congress and mayors of cities near the border. The White House invited the officials to lend more weight to Biden’s message. One could also read the message displayed on two large screens behind the president good measure: “President Joe Biden — Securing Our Border,” in white text against a blue background.

A 180-Degree Turn

Biden is an incumbent president in defense mode, after all. He is not campaigning against just anyone, but against Donald Trump, who recently led Biden in a major poll, for whom not even a guilty verdict on 34 felony charges seems to have substantially cost any votes. In Republican campaign rhetoric, the myth of the “open border” under Biden comes right after the one about the corrupt justice system that treats Trump unfairly. And although the border was not “open” before either, the number of illegal border crossings has, in fact, reached a record high under Biden. At times the number reached 10,000 a day.

Immigration policy will be one of the most important issues for Americans in the coming election. The incumbent president has come under so much pressure that he agreed to considerably restrict the right of asylum a few months ago. For a Democrat, and for Biden in particular, who campaigned on the promise to make up for Trump’s policy at the border, this was a 180-degree turn.

It’s Trump’s fault that this proposal never made its way through Congress. Trump pushed Republican members of Congress to reject this — although Biden’s proposal is exactly what they have been demanding for a long time and what they had partly negotiated themselves. In the end, Trump determines how things go. And for other Republicans, it is obviously more attractive to campaign with the slogan “Biden’s Border Crisis” than to confront the problem seriously. “So, today, I’m moving past Republican obstruction and using the executive authorities available to me as president to do what I can on my own to address the border,” Biden said. He pointed to the mayors around him: “They don’t have time for the games played in Washington, and neither do the American people.”

Deportation Is Only Possible to Countries That Accept This

Of course, it’s not by chance that Biden is becoming active right now. The presidential election is in five months, the first televised debate against Trump in about three weeks. Until then, Biden intends to show that he is capable of reducing the number of border crossings. Additionally, the Supreme Court, the highest court in the United States, is going on its summer break in a few weeks. This reduces the chance that lawsuits challenging the new order can succeed before the election.

There are good reasons why aid organizations have already announced they will take this to court and why the United Nations has expressed concern about Biden’s plan. The right of asylum allows refugees to seek protection and have their case reviewed regardless of how they entered the country. Until now, people who crossed into the United States illegally and applied for asylum were allowed to stay until a court examined their application. However, the administration is so overburdened that this usually takes years.

Morally, the whole thing presents itself differently. In the vast majority of cases, the “illegal crossings” involve people crossing the border and then waiting for U.S. Customs and Border Protection to process their applications for asylum. Only relatively few try to sneak into the country, which Republicans sweepingly claim as they amplify voter fear about an “invasion of illegal immigrants.” This is a narrative that Biden is now echoing as well. His order continues to ensure humanitarian exceptions when refugees can prove credible fear of torture and political persecution if deported to their home country. However, the standards for this are significantly higher than for a regular asylum application.

Deterrence Hardly Works

“This action will help us to gain control of our border, restore order to the process,” Biden promised. There is no way the restrictions can be enforced the way the president suggests here. Deportation is only possible to countries that accept it. Venezuela, one of the most frequent countries of origin for asylum-seekers, recently boycotted flights from the United States. Additionally, Title 42, a public health order enacted under the Trump administration at the beginning of the pandemic that allowed U.S. authorities to expel migrants quickly back to Mexico or elsewhere, has already shown that, in questionable cases, people return the next day to reapply for asylum. That was a significant reason why the numbers skyrocketed under Biden, who only allowed Title 42 to expire last year. The government is counting crossings, not people.

The lesson here is that deterrence hardly works on this border. This also will not change if the government threatens asylum-seekers with drastic penalties if they return after being deported. Why is Biden trying this anyway and with so much fuss? One could assume that the president is primarily concerned with giving the impression that something fundamental is changing at the border. Whether this is in fact the case and, most of all, whether it is sustainable, is secondary.

On the other hand, not much else remains for Biden. He could solve the file backlog only with significantly more personnel and additional resources. Congress has blocked funds for this for many years. Furthermore, it’s not just Republicans who are sitting on his neck, but Democrats from states like Arizona or Nevada that lie on or near the border. Both are fierce battleground states because Democrats and Republicans often run extremely close races there. Not just in presidential elections, but also in congressional and local races. Movement on the border there is not a scene of panic imagined by people in distant parts of the United States, but rather a real and decisive election issue in daily life. The situation has long since become a crisis as well in big cities governed by Democrats, such as New York, Denver and Chicago. An increasing number of desperate people are ending up there while they wait for a decision on their asylum application and don’t know where they will go. Those in charge are calling for help, saying they cannot take care of everyone.

Biden has now heard them. And he hopes that he himself will be heard and thus fewer people will try to emigrate in the coming months. The president does not want terrible images of families turned away and bitter suffering at the border. It is enough that he must be compared with Trump. Among other things in his order, Biden refers to the same legal text that Trump used to justify his immigration ban on travelers from Muslim-majority countries.