Biden’s alleged anti-asylum plan revives failed Trump-era policy and violates international law, critics warn

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President Joe Biden’s reported plan to restrict the right to claim asylum at the US-Mexico border has alarmed members of Congress and civil and humanitarian rights groups who fear the administration could be in breach of international law.

The president is reportedly mulling executive action to block people who cross the southern border without legal permission from claiming asylum once inside the US, upending guarantees that protect asylum rights for people on US soil.

Such a proposal, which would bypass Congress, would mirror an illegal Trump-era measure that a federal judge had previously rejected as an unlawful attempt to “rewrite” the nation’s immigration laws to “impose a condition that Congress has expressly forbidden.”

Mr Biden’s proposed order would reportedly invoke Section 212(f) of the 1952 Immigration and Nationality Act, which allows the president to suspend immigration for anyone determined to be “detrimental to the interests of the United States” – the same authority Donald Trump used to unilaterally ban immigrants from majority-Muslim countries, which was later struck down in court.

The Biden administration also would reportedly raise the standards for border agents’ “credible fear” screenings for people seeking asylum and establish a “last in, first out” policy for deportations.

“The clear intention behind President Biden’s newest proposed deterrence policy is to create so much fear, pain, and suffering at the border that vulnerable communities abandon their right to seek asylum and instead return to face the violence they are fleeing,” according to Amy Fischer, director of refugee and migrant rights with Amnesty International USA.

The changes would “undoubtedly violate both US and international human rights law that establish people may seek asylum regardless of whether they cross at a port of entry or between ports of entry,” she told The Independent.

Any attempt to revive policy that denies asylum based on where one enters the US “would just be another attempt at the exact policy Trump unsuccessfully tried and will undoubtedly end up in litigation,” according to American Civil Liberties Union attorney Lee Gelernt, who successfully fought the Trump administration’s asylum ban.

“The courts were emphatic that the Trump administration could not deny asylum based simply on how one entered the country,” Mr Gelernt told The New York Times. “Hopefully the Biden administration is not considering recycling this patently unlawful and unworkable policy.”

People seeking asylum arrive at the US-Mexico border in California on 2 February (AFP via Getty Images)
People seeking asylum arrive at the US-Mexico border in California on 2 February (AFP via Getty Images)

Congressional Progressive Caucus Chair Rep Pramila Jayapal called the proposal a “disappointing mistake.”

“Democrats cannot continue to take pages out of Donald Trump and Stephen Miller’s playbook,” said Ms Jayapal, referencing the architect of the Trump administration’s anti-immigrant agenda. “We need to lead with dignity and humanity.”

Reports of the proposal, which could still be weeks away from being implemented, follow the collapse of a Biden-approved immigration plan rejected by the Republican-controlled House of Representatives.

The failed plan would’ve provided billions of dollars to the border for, among other things, hiring thousands of officers to process asylum claims, as aggressive immigration enforcement and border patrol becomes a priority among Republicans and Democratic officials ahead of 2024 elections.

Migrant apprehensions at the US-Mexico border dropped by 50 per cent from December to January, according to federal data, though Acting US Customs and Border Protection Commissioner Troy Miller said this month that authorities “experience serious challenges along our border which surpass the capacity of the immigration system.”

The Universal Declaration of Human Rights and the United Nations Refugee Convention have affirmed asylum rights for people fleeing persecution and violence. In the US, a person granted asylum is legally allowed to remain in the country without fear of deportation, and qualifies for legal work with potential pathways to permanent legal status. Those claims can only be made at the US border or within the US.

Democratic members of Congress have derided the propsal as a worrying revival of Trump policy.

“People seek asylum because they fear for their lives,” said Democratic US Rep Chuy Garcia, a member of the Congressional Hispanic Caucus. “President Biden would be making a grave mistake if he moves forward with this policy.”

Seeking asylum “is a legal right of all people,” said US Rep Alexandria Ocasio-Cortez. “In the face of authoritarian threat, we should not buckle on our principles – we should commit to them.”

People seeking asylum wait in line to be processed by border patrol agents near the US-Mexico border outside California on 2 January (AFP via Getty Images)
People seeking asylum wait in line to be processed by border patrol agents near the US-Mexico border outside California on 2 January (AFP via Getty Images)

The National Hispanic Caucus of State Legislators said the proposed plans “will do nothing to ameliorate or relieve the pressing need for comprehensive immigration reform” or support states with funding to support the US-Mexico border.

“It will only cause more damage, risk and ruin more lives, and put a target on our communities for nothing in return,” according to the caucus. “The right to seek asylum is not a crime or a political toy. It’s also not a bargaining chip to use when it’s politically convenient. Seeking asylum is a right, one that can mean life or death to a lot of people, children, families, and must be treated as such.”

The Independent has requested comment from the White House.

A spokesperson did not comment on reports of Mr Biden’s proposed actions but underscored the administration’s support for bipartisan border legislation.

“The Administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system,” White House spokesperson Angelo Fernandez Hernández said in the statement.

“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected,” he added. “We continue to call on Speaker Johnson and House Republicans to pass the bipartisan deal to secure the border.”