Daily Border Links: June 4, 2024
Adam Isacson
Developments
Later today, President Biden will sign a sweeping proclamation shutting down the right to seek asylum for migrants apprehended on U.S. soil between the U.S.-Mexico border’s ports of entry. Several border-region mayors, mainly from Texas, will be on hand, along with some centrist Democratic legislators. The Departments of Homeland Security and Justice will issue an interim final rule laying out how they will implement the “asylum shutdown.”
According to several media reports, the “asylum shutdown” would be triggered when Border Patrol’s daily migrant encounters exceed 2,500 per day, as they have in every month since February 2021. The right to asylum between ports of entry would not be restored until migrant apprehensions drop below a daily average of 1,500 per day, which has not happened since July 2020.
Of the 296 months since fiscal 2020, the daily average has exceeded 2,500 in 110 of them: 37 percent of the time. During those 110 months, had the executive order been in place, it would have triggered an asylum shutdown. The daily average has dropped below 1,500 just 42 percent of the time (124 months), which would have made restoring asylum difficult had the executive order been in place.
Unless there is a radical change in migration patterns at the border, then, this is an effective ban on asylum between ports of entry. The Trump administration sought to implement a similar “asylum ban” 2019—making it absolute, without the numerical thresholds—but courts threw it out because it violated Section 208 of the Immigration and Nationality Act (INA), which guarantees due process for people asking for asylum on U.S. soil.
Other likely elements of the executive order, according to secondary reports:
- Its legal justification will be Section 212(f) of the INA, which allows the President to prohibit the entry of entire classes of non-citizens considered “detrimental to the interests of the United States.” It is doubtful, however, that 212(f) applies to people who have already arrived on U.S. soil and are requesting protection. “ A reliance on 212(f) that prevents access to asylum arguably directly conflicts with the INA,” reads a new policy brief from the American Immigration Lawyers’ Association.
- It will not apply to unaccompanied minors or victims of “severe” trafficking.
- It will not apply to people who have made appointments at border ports of entry using the CBP One app. We have heard nothing about any possible changes to the number of appointments that this app will make available; the current cap is 1,450 per day.
- People will be screened for fear of return only if they specifically manifest such fear to U.S. authorities.
- Unlike Title 42 expulsions, those who are removed under this new arrangement will be penalized, probably by being barred for several years from reentering the United States.
Elements that are not clear include:
- What would happen if the number of apprehended migrants exceeds border authorities’ ability to deport them, detain them, or screen them for the executive order’s likely elevated criteria for fear of harm. All of these require resources. During the “Title 42” era, thousands per day were released into the U.S. interior because authorities could not detain or remove them.
- What the Mexican government’s cooperation with deportations of rejected asylum seekers might look like.
- “Policy Brief: Presidential Authority to Block or Expel Migrants” (American Immigration Lawyers Association, June 3, 2024).
- Hamed Aleaziz, Zolan Kanno-Youngs, “Biden Is Expected to Sign Order Letting Him Seal Border With Mexico” (The New York Times, June 3, 2024).
- Julia Ainsley, Julie Tsirkin, Monica Alba, “Biden Is Expected to Sign an Executive Action Tuesday That Would Temporarily Shut the Border When Numbers Surge” (NBC News, June 3, 2024).
- Colleen Long, Seung Min Kim, Stephen Groves, “Biden Prepares an Order That Would Shut Down Asylum if a Daily Average of 2,500 Migrants Arrive” (Associated Press, Associated Press, June 3, 2024).
- Nick Miroff, Toluse Olorunnipa, “Biden Expected to Announce New Asylum Restrictions at Border” (The Washington Post, June 3, 2024).
- Michelle Hackman, Tarini Parti, “Biden to Issue Executive Order on Southern Border, Limiting Asylum” (The Wall Street Journal, June 3, 2024).
- Jennifer Haberkorn, Myah Ward, “Border Mayors, Democratic Allies to Join Biden as He Announces Asylum Limits” (Politico, June 3, 2024).
- Camilo Montoya-Galvez, “Biden Executive Order Restricting Asylum Processing Along U.S. Border Expected on Tuesday” (CBS News, June 3, 2024).
- Steve Holland, Ted Hesson, “Biden Expected to Block Migrants From Asylum at Us-Mexico Border” (Reuters, Reuters, June 4, 2024).
- Hans Nichols, Stef W. Kight, “How Politics, Timing Shaped Biden’s Border Gambit” (Axios, June 4, 2024).
- “Biden Set to Unveil Order Restricting Asylum at Us-Mexico Border” (Al Jazeera, June 3, 2024).
- Rafael Carranza, “Az Border Mayors Shun Biden’s Invite to Unveil Executive Order Curbing Asylum” (The Arizona Republic, June 3, 2024).
- Robert Moore, “Oscar Leeser Will Join President Biden for Tuesday Announcement on New Asylum Limits”(El Paso Matters, June 3, 2024).
Democratic legislators who defend migrants’ rights are upset, the Washington Post reported. Rep. Pramila Jayapal (D-Wash.), chair of the Congressional Progressive Caucus told White House Chief of Staff Jeff Zients that the measure is “very, very disappointing.”
- Leigh Ann Caldwell, Theodoric Meyer, “Democrats Frustrated With Biden Border Order” (The Washington Post, June 4, 2024).
The Republican-majority House of Representatives’ Homeland Security Appropriations Subcommittee met this morning to “mark up” (amend and approve) its draft of the chamber’s 2025 budget bill for the Department of Homeland Security. The draft bill, which reflects Republican priorities, has virtually zero chance of passage before the November election.
It includes mandatory spending on border wall construction. It provides funding for a total of 22,000 Border Patrol agents, nearly 3,000 more than the present workforce. It would eliminate funding for the Case Management alternatives-to-detention pilot program, the Office of Immigration Detention Ombudsman, and the Family Reunification Task Force, and the Shelter Services Program. It would prohibit use of the CBP One app “to facilitate the entry of aliens into the country.” It would increase ICE’s detention bed capacity to 50,000, up from the currently funded level of 41,500.
- “Committee Releases fy25 Homeland Security Appropriations Bill” (U.S. House of Representatives Committee on Appropriations, June 3, 2024).
Amid increasing pre-summer heat, CBP reported four deaths of migrants in its El Paso Sector (Texas-New Mexico) over the weekend.
- “Weekend Deaths Highlight Dangers of Crossing Border” (U.S. Customs and Border Protection, June 3, 2024).
Arizona’s Republican-majority legislature is close to approving a law similar to Texas’s controversial S.B. 4, which makes it a state crime to cross the border improperly. Rather than go to Gov. Katie Hobbs, a Democrat who would veto it, the law would become a ballot measure when Arizonans vote in November. S.B. 4, which would let Texas enforce its own immigration policy and incentivizes racial profiling, remains suspended as litigation continues.
- “Arizona Proposal to Let Local Police Make Border-Crossing Arrests Is Set for Lawmakers’ Final Vote”(Associated Press, Associated Press, June 4, 2024).
The police chief of San Luis Rio Colorado, Sonora, Mexico—a border city just south of Yuma, Arizona—was assassinated in a broad-daylight ambush in the middle of the city yesterday.
- “Acribillan a Titular de la Policia de Slrc y su Escolta, Confirma Fgje Sonora” (Proyecto Puente (Mexico), June 3, 2024).
A Border Patrol agent in Texas’s Rio Grande Valley was arrested on charges of helping migrants cross into the United States in exchange for bribes.
- Jason Hopkins, “Border Patrol Agent Arrested Over Alleged Scheme to Smuggle Migrants Over Southern Border” (Daily Caller, June 3, 2024).
Analyses and Feature Stories
Following a U.S. Government Accountability Office report about Border Patrol agents’ confiscation of migrants’ belongings and documents while in custody, Cronkite News talked to advocates and service providers in Arizona who are documenting the problem and filing complaints.
- Benjamin Adelberg, “Immigrants Report Missing Personal Items by Border Patrol” (Cronkite News, June 3, 2024).
The New York Times looked at recent poll data showing reduced support for immigration within U.S. public opinion.
- Jazmine Ulloa, “Trump’s Harder Line on Immigration Appears to Resonate, Polls Show” (The New York Times, June 3, 2024).
On the Right
- Adam Shaw, Lucas Y. Tomlinson, “‘Too Little, Too Late’: Why Biden’s Border Plan Doesn’t Impress Critics”(Fox News, June 3, 2024).
- Jennie Taer, Victor Nava, “Republicans Slam Biden Border Crackdown Order as ‘Political Stunt,’ as Dem Texas Mayor Says It’s Months Too Late” (The New York Post, June 3, 2024).
- Ingrid Jacques, “Biden Finally Acts on Border Crisis, Showing He Could’ve Done Something About It All Along” (USA Today, June 3, 2024).
- Steven Nelson, “How Explosive Showdown Between New Biden Campaign Manager and Eric Adams Tanked Mayor’s Relationship With Prez” (The New York Post, June 3, 2024).