The U.S. government needs to be able to quickly and fairly sort out migrants who have a valid asylum claim, but instead of investing in U.S. ports of entry, immigration courts, or more options for legal migration, the order focuses on harsh and arbitrary turnbacks.  

So long as Biden’s border policy remains focused on punishing border-crossers instead of recognizing the benefits that immigrants bring to our country, and without further action from Congress, we will continue to see suffering, chaos, and disorder in our immigration system, the Council said.   

The interim final rule creates an arbitrary asylum system that depends not on the strength of a person’s claim, but on the number of border crossings. The rule denies asylum by default to anyone who crosses the border, should the daily average of crossings exceed 2,500.  

While this will not prevent every person from being allowed to stay in the United States, it forces them to undergo a more onerous process in order to receive a lesser form of humanitarian relief. It also means more people fleeing persecution will be barred from receiving protections and rapidly deported. Additionally, it empowers criminal cartels and human smugglers to spread misinformation and to prey on migrants more easily amidst the confusion.  

Most surprising, the executive action eliminates the current requirement that the Border Patrol ask migrants about their individual situation and whether they fear persecution, and instead institutes a “shout test” which requires migrants to affirmatively “manifest” an intent to seek asylum or a fear of persecution to get a credible fear interview, which will likely reduce the number of people screened for protection. 

The following statement is from Jeremy Robbins, executive director of the American Immigration Council:   

“Yesterday’s executive action is not a meaningful solution to the chaos at our southern border.  

If you’re worried about controlling the flow of migrants into United States, this is not the answer. If you’re worried about it taking six years to process an asylum claim, this is not the answer either. The solutions are clear. We need to invest in more immigration judges and asylum officers, in expanding access to our ports of entry, and in policies that recognize the massive role that immigrants play in making our country more prosperous.  

We need order at the border, but the way to achieve that end is by fully resourcing our asylum system and by making it easier for people to come here lawfully, not doubling down on deterrence. This approach has proven to be effective through the administration’s various parole programs and it is broadly supported by the American public. But yesterday’s enforcement-only action ignores this reality and will only serve to make the situation at the border more unpredictable and arbitrary, harming countless people in the process and failing to meaningfully address the situation at the border.  

For more than 40 years, U.S. law has been clear: all people physically present or arriving in the United States may seek asylum. No president can erase that law from the books with the stroke of a pen. It’s past time for our elected leaders to stop using the border for political ends and to instead do the difficult work of creating a system that better reflects our values and the reality of record levels of displacement around the world.” 

Even as Biden takes action to limit asylum access along the southern border, new economic data highlights the significant role that immigrants play in making the U.S. a more prosperous country. Review the data here. 

Biden’s order also makes use of a presidential authority known as 212(f), which has been frequently used in recent years to restrict asylum access at the border. However, much legal uncertainty still surrounds 212(f) and the ways in which a president may use it. (Read the Council explainer on the 212(f) authority here.)