Washington Post: On Biden’s border policy, critics both left and right are wrong
By: Washington Post Editorial Board- 7/14/2023
Uncontrolled migration across the U.S.-Mexico border is not in anyone’s interest except, perhaps, for the smugglers who profit by charging people to make the difficult and dangerous trek. After much hesitation, during which unauthorized attempted border crossings reached an all-time high of 2.76 million in fiscal 2022, the Biden administration acted to stem the flow and redirect it into lawful, more manageable channels. Initial data from the Department of Homeland Security shows progress: Daily Border Patrol encounters with migrants fell from 10,000-plus just before May 11, when the policy went into effect, to 3,400 in early June. Set forth in regulations finalized May 10, the plan seems to be preventing the border chaos many had feared would follow expiration of emergency powers under Title 42, a public health law that had allowed federal authorities to expel migrants summarily during the pandemic.
There’s a catch, though: President Biden’s policy has to be consistent with federal law. And critics from both ends of the political spectrum have gone to federal court arguing that it’s not. On July 19, a judge in Oakland, Calif., is set to hear a coalition of immigrants’ rights advocates, headed by the American Civil Liberties Union, who claim, in effect, that the Biden plan unlawfully truncates the right to asylum. Meanwhile, red states, headed by Texas, accuse the administration of the opposite: letting in hundreds of thousands of migrants without sufficient legal authority.
The courts should let the administration’s approach, which includes a two-year time limit, run its course. Some of the legal arguments against it are serious. Yet, so is the Biden administration’s case: that the president is trying to address a major problem through a pragmatic exercise of his existing authority.
Essentially, the new policy offers migrants incentives and disincentives — carrots and sticks — the net effect of which is to discourage irregular border-crossing. The disincentive, framed as a “rebuttable presumption” against entry, is swift expulsion and a five-year bar on reentry for those who cross between ports of entry without first seeking asylum in a third country en route. The incentive is that these tough conditions do not apply to migrants who first make appointments using a cellphone app to apply for asylum at ports of entry and wait in Mexico for their turn. The rule contemplates advance processing for asylum in a third country as well. Separately, it offers 30,000 people per month from Venezuela, Nicaragua, Cuba and Haiti — main sources of the 2022 border surge — direct access to the United States via two-year humanitarian parole, provided they have a U.S. sponsor.
The ACLU-led suit, however, characterizes Mr. Biden’s policy as a replay of President Donald Trump’s pre-covid attempt to impose a flat ban on asylum for border crossers who transited a third country, which federal courts on the West Coast had blocked, calling it a violation of a 1980 statute providing “any alien physically present in the United States” with a right to seek asylum.
The Biden administration differentiates its plan, citing the fact that migrants may rebut the presumption that they should be denied entry and that the new system provides alternative pathways to legal entry. It therefore qualifies as a “condition” on asylum-seeking, the administration argues, of the kind a separate provision of immigration law permits. To be sure, the ACLU-led lawsuit complains that glitches in the asylum appointment app prevent many from taking advantage of it, but a June 6 DHS statement noted that it had enabled more than 1,000 asylum seekers a day since May 12 to present themselves at ports of entry. The department recently announced an increase in the number of such spaces available to 1,450 per day. A half-million people a year could seek asylum through this channel.
The gist of the Republican-led states’ objections is that both the app and the use of humanitarian parole to admit migrants from Cuba, Venezuela, Nicaragua and Haiti create new visa programs without congressional authorization. The Biden administration argues that there is still case-by-case consideration of each applicant for parole and that the program fits the law’s requirement that humanitarian parole provide significant “public benefit” — in this case, steering migrants away from the border.
Ironically, given their opposite ideological perspectives, the administration’s opponents both urge the courts to take a strict textualist view of the law, whereas the administration — persuasively, in our view — insists on consideration of real-world circumstances and the government’s intentions. This is not a replay of Mr. Trump’s policy but a pro-immigration president’s effort, as the government’s brief in the ACLU-led lawsuit puts it, “aimed at safeguarding the ability of the immigration and asylum system to function effectively in the face of an anticipated dramatic increase in border encounters — and at ensuring that the government’s limited resources are used in the most efficient and equitable way.”
The Biden administration is trying to salvage the asylum system’s core objectives, not subvert them, via a program that is balanced and time-limited. It acknowledges, as a DHS statement recently put it, that a permanent fix will require Congress “in a bipartisan way to address our broken immigration and asylum system.” Meanwhile, judges should not make the job harder than it already is. ### |
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