Biden’s asylum changes reduced border crossings. But are the rules legal?

BROWNSVILLE, Tex. – A federal judge is set Wednesday to hear a challenge to the Biden administration’s new restrictions on seeking asylum, a case that could upend the fragile calm that has taken hold in U.S. border cities and reshape America’s role as a refuge for foreigners fleeing harm.

The restrictions – which penalize migrants who fail to follow the rules – have led to a dramatic drop in unauthorized border crossings. But thousands are waiting in Mexico for an appointment to seek humanitarian protection in the United States, jammed into fetid tent camps similar to those President Biden deplored on the campaign trail in 2020.

Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.

The Biden administration has declared that migrants are automatically ineligible for asylum if they enter the United States illegally or fail to seek asylum in another country on their route, according to a temporary rule imposed in mid-May. Asylum seekers who cross the border illegally are being treated like any other unauthorized crosser, meaning they can be deported and barred from re-entering for five years.

U.S. District Judge Jon S. Tigar, an Obama nominee who is hearing the case Wednesday, in Oakland, Calif., struck down similar restrictions on seeking asylum under the Trump administration, saying they ignored clear commands from Congress to let foreigners apply for protection.

The Biden administration emphasizes that its rules are different from Trump’s because they include multiple legal pathways to enter the country. Asylum seekers may apply for an appointment through a U.S. Customs and Border Protection smartphone app, and can also argue that they deserve an exemption from the rule because they are ill or in imminent danger. Migrants from specific countries such as Venezuela and Haiti can also apply to be allowed in on “parole,” if they have a U.S. sponsor to receive them.

Officials say the rule is temporary, a two-year stopgap to control the border as the world reels from pandemic-ravaged economies and repressive governments. Since it took effect in mid-May to mid-June, little more than 7,200 migrants have been declared ineligible for asylum, the Department of Homeland Security said in a statement. But U.S. border apprehensions dropped from about 200,000 to 100,000 from May to June, a sign that the number of illegal crossings has plummeted.

Biden officials note that most migrants who claim asylum do not ultimately win their cases in immigration court, though they are rarely deported. In its statement, DHS said the agency is “confident in our legal authority” to implement the rule.

Advocates for migrants and the U.N. refugee commissioner are not convinced. They have said the policy violates federal and international law, arguing that migrants fleeing for their safety should not be forced to wait to schedule an appointment to be heard. No matter what he decides, Tigar’s ruling could be appealed, potentially placing the hard-won protections for refugees forged in the aftermath of World War II for consideration before the Supreme Court.

“We’re talking about an essential human right being denied with very precipitous consequences,” said Michael Knowles, spokesman for the National Citizenship and Immigration Services Council 119, which represents asylum officers and other immigration employees and also opposes the restrictions. “Imagine, when the U.S. is supposed to be setting the standard for the rest of the world.”

One border, two realities

The perceived success of Biden’s approach depends on which side of the border the migrants are on.

Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.

The streets are quiet, thanks to a 70% drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.

In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.

On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app – including some Mexicans, even though the rule change is not supposed to apply to them.

“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”

Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection – and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.

But advocates are powerless to navigate around the new rules until the court case is resolved.

In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.

Asylum is a right, she said, standing on a platform that used to hold gas pumps, and getting a chance to seek it should be as simple as crossing the border. To qualify, in the United States or another country, a person must have a well-founded fear that they will face persecution in their homeland because of their race, religion, nationality, political opinion, or another characteristic that might single them out.

Asencio said her organization and other legal groups disagreed with the Biden administration’s rules and restrictions on requesting asylum, and were helping to fight them in court.

“But that’s the reality,” she said, as migrants stared back at her. Some later said they felt hopeless. Most were from Haiti and had been on the run for years, from devastating earthquakes, marauding gangs and such instability that the president was assassinated in 2021 in his own home.

Many had gone first to countries such as Chile, spurring questions about whether they could have stayed there. But in interviews, many migrants said they did not understand the new requirements for seeking asylum, only that it was unsafe for them to remain where they were.

In Chile, for instance, a U.S. State Department report said Haitians and other migrants suffered discrimination and attacks.

Advocates say the only way to know if someone qualifies for asylum is to examine each case after a person is safely inside the United States, an option they say has never been adequately funded by the U.S. government.

After Ascencio finished her presentation, a whoop sounded from a tent in the back of the camp.

A married couple had gotten their asylum appointment through the CBP app. They had been trying to seek asylum since January, sharing a narrow foldout futon that the husband had lugged on buses from southeast Mexico. Soon they would start their new lives in New Jersey, pending a hearing before an immigration judge.

“They suffer so much here,” said Felicia Rangel-Samponaro, director of the Sidewalk School, which provides education and other aid to migrants in Mexico. She was in tears as she watched the impromptu celebration, aware, she said, that so many others would have to wait.

Roots in World War II

Congress and President Jimmy Carter created the modern asylum system in 1980 with the passage of the U.S. Refugee Act, which says migrants may request asylum whether they crossed at a legal checkpoint or waded across the Rio Grande.

The law solidified a solemn promise that the United States and other nations made after World War II: They would not send migrants to countries where they might face persecution – like the U.S. government did in 1939, when officials turned back the SS St. Louis carrying Jewish refugees fleeing Nazis. The State Department said those on board would have to apply to enter the country legally. Of more than 900 passengers turned away, 254 later died during the Holocaust.

Even after the 1980 act passed, actually getting asylum was hardly easy. President Ronald Reagan defeated Carter later that year and expanded support for bloody wars in Central America that drove a new wave of refugees toward the U.S. border. Asylum seekers poured into Brownsville and other border cities, some missing fingernails they said their torturers had pulled out.

The Reagan administration called them “economic migrants,” and the federal government rejected most asylum claims filed by Guatemalans and Salvadorans during the 1980s, according to the Migration Policy Institute and the Library of Congress. Advocacy groups sued, arguing that hundreds of thousands of migrants were prevented from getting fair hearings. The U.S. government settled the case in 1991 by agreeing to hear their cases again.

Now some lawmakers and U.S. officials are describing the latest influx of border crossers as a wave of economic migrants seeking work in the United States, which has an estimated 10 million unfilled jobs and a stronger economy than other countries.

The number of pending asylum cases has soared to historic highs, with more than 1.5 million people awaiting a decision in the Justice Department’s immigration courts or in the Department of Homeland Security, according to the Transactional Records Access Clearinghouse, a Syracuse University organization that tracks asylum and other immigration cases.

The surge has raised worries that migrants are requesting asylum only so they can get a job in the United States while they await a hearing, which is not a reason for humanitarian protection.

In some cases, that is true. A 19-year-old from Venezuela who arrived in Brownsville in late June said he claimed he was afraid to go back to his country so that he could work and escape stifling poverty in there.

“I lied,” said the teenager, who spoke on the condition of anonymity to avoid harming his case. “I ask forgiveness from God.”

He has a court hearing scheduled for next year. Because of diplomatic tensions, the United States cannot deport him to Venezuela if he is denied asylum. But it can deport him to Mexico, where he says gangs tried to kidnap him.

Lawyers say asylum is complex and that the high number of migrants losing their cases doesn’t mean they’re not eligible for protection. They might not have lawyers or the ability to defend themselves in court.

But to win an asylum case – which opens the door to permanent residency and a path to U.S. citizenship – people are supposed to be fleeing a direct threat. For instance, last year the White House made clear that Russians opposing the war in Ukraine were welcome to seek asylum in the United States.

In a weather-beaten office near the Gateway International Bridge in Matamoros, Gladys Cañas, director of an organization called Helping Them Triumph in Spanish, helps dozens of migrants sort out their cases. She offers food and shelter and looks for those who could merit an exception and cross without an appointment.

Cañas is an advocate, not a lawyer. But as she hears their stories, she worries that most of the migrants are ineligible for asylum, because they are fleeing poverty, rather than government persecution or an imminent threat. Still, she believes they should have the right to enter the United States and make the request.

“Most have cases of work, poverty, lack of opportunities, natural disasters, bad governments,” she said. “The lawyers have told us that asylum is personal. They have to have proof that their life really is in danger.”

Among the ones hoping to get an appointment last month, or clearance to enter the United States without one, was a police investigator from Venezuela, who said she was fleeing sexual harassment back home and would face arrest if she returned there because she had abandoned her post. In Matamoros, she was sleeping on the street.

She had gone to the bridge crying, but Mexican police ordered her to leave.

“They told me to save my tears for the other side,” she said.

She was depressed, anxious and alone.

“You have to have patience,” Cañas told her, placing an arm on her shoulder as she found her a shelter to stay in. “My priority is your safety.”

Waiting to be heard

During the 2020 presidential campaign, Joe Biden vowed to restore asylum options that had been limited because of the pandemic. His wife, Jill Biden, visited a Matamoros migrant camp on the Rio Grande and pronounced it a “betrayal” of American values. Weeks after Biden’s inauguration, that camp closed.

Now it is back and, advocates say, larger than ever, an expanse of flimsy tents and sticks and open-air toilets that are easily washed away in storms.

In one tent camp along the Rio Grande, migrants can see the U.S. territory across the slow-moving river. It would be easy to cross and set foot on U.S. soil, as millions have done before them. But many are holding off, in hopes of getting an appointment under the new rule.

Those who don’t wait for an appointment are automatically ineligible to be considered for asylum – unless they qualify for an exception – and could be deported from the United States with orders not to return for five years.

Since the new rule took effect, Human Rights First documented multiple cases of Mexican nationals being turned away from the border without an appointment, even though they are not supposed to be affected by the change.

A Washington Post reporter in late June witnessed a Mexican man named Miguel, 31, waiting in line on the bridge with his wife, their three children and his cousin. He said the family had tried to cross the border legally three times. U.S. officials did not let him in, he said, and each time the Mexican police said he had to leave the bridge because he did not have an appointment through the app – which is not required for Mexicans.

The Department of Homeland Security declined to comment on his case.

Miguel, who asked that his last name not be published because he feared retaliation, said he had been a bus driver in a city near the sea in Guerrero state until one day early this year, when three men boarded his bus and offered him a job transporting drugs. They gave him two weeks to decide whether to accept. “Think about it,” he said one man told him, tapping his own temple and leaning in close.

Eight days later, the three men tried to flag down his bus. He blew past them at the bus stop, dropped his confused passengers a few blocks away and raced home to his wife.

Time to go, he told her.

“That’s not the life I wanted for my kids,” he said.

A mother from Venezuela and her 10-year-old daughter hadn’t made it across, either. They were holed up with strangers in a Matamoros hotel that felt much safer than the tent camps.

The pair had been riding a passenger bus to the border to seek asylum when the driver stopped to get gas. Kidnappers led the passengers, all migrants, to a stash house, and forced them to record videos pleading for ransom, which were sent to their relatives. The abductors beat the men and threatened children who cried, said the woman, who asked not to be named out of fear for her safety.

A week later they were released in exchange for $2,000. She has recordings of her abductors and text messages to show authorities.

“I have all the proof,” she said.

Each morning she checks her phone to see if she has received an appointment, so she can explain to a U.S. official why she is afraid for her life.