A group of House Democrats on Tuesday pushed the Biden administration to either reconsider its crackdown on asylum or expand legal representation for migrants navigating a new set of rules.
In a letter to Homeland Security Secretary Alejandro Mayorkas and United States Citizenship and Immigration Services (USCIS) Director Ur Jaddou, the Democrats said migrants are now forced to make life-changing legal decisions on the fly and under duress, facing immediate and drastic consequences like a minimum five-year bar on reentering the United States.
“Allowing the consideration of mandatory bars to asylum during initial asylum screening interviews will force asylum seekers to present legally and factually complex arguments explaining the life-threatening harms they are fleeing shortly after enduring a long, traumatic journey and while being held in immigration detention and essentially cut off from legal help,” wrote the lawmakers, led by Illinois Democratic Reps. Delia Ramirez and Jesús “Chuy” García.
Other co-signers include Congressional Hispanic Caucus Chair Rep. Nanette Barragán (D-Calif.), Biden-Harris 2024 campaign co-Chair Veronica Escobar (D-Texas) and Rep. Jim McGovern (D-Mass.), the top Democrat in the House Rules Committee.
Biden’s policy shift is contained in an interim final rule that makes migrants who enter the country between ports of entry generally ineligible for asylum unless they meet certain exceptions, and a presidential proclamation that limits when border officials screen migrants for asylum claims.
The move has opened a rift among Democrats, some of whom support the measure in part because it seeks to blunt Republican attacks on Biden’s border policies, and others who say it won’t work to reduce numbers and will dissuade voters with immigrant connections from supporting Democrats.
“I think that folks are feeling pressure up and down the ballot. I think that we have not done a great job in messaging immigration. But then the other part of that is also valid if we’re being honest, is we haven’t done anything about immigration reform, it’s been over 30 years,” Ramirez told The Hill.
That congressional inaction has been cited by Mayorkas to justify the asylum crackdown, but its opponents on the left see attacking asylum as an aimless, knee-jerk reaction.
“When things start boiling to such a point that we’ve reached this moment, instead of actually seeking solutions, we’re trying to be responsive, and the Republicans have done an incredible job at putting up videos and sending influencers to the border, and using every tactic they can to attack us,” said Ramirez.
“And instead of us responding from a place of values but also from a place of solutions, we’ve now reacted in such way that it almost feels like we’ve been apologizing for the issue instead of actually addressing it, which is why we’re here now. Which was why you’re hearing some Democrats say things that I would never have imagined.”
The core of Biden’s border measure makes it more difficult for migrants to apply for asylum in hopes of deterring people from crossing the U.S.-Mexico border between ports of entry, and instead making use of the limited avenues to request asylum through a preestablished appointment with U.S. officials.
Migrants who decide to cross the border without prior authorization will not initially be screened for asylum, and if they proactively make an asylum case they will be held to a higher standard than had been the practice before the order.
Migrants who either don’t have the wherewithal to make a case or who fail that higher standard will face the minimum five-year bar on reentry and possible criminal prosecution.
The Democrats behind Tuesday’s letter panned the administration for doing an about-face on mandatory bars.
“The Biden Administration just two years ago concluded that the inclusion of mandatory bars in credible fear screenings would make the screenings less efficient, undermining Congress’s intent that the expedited removal process be swift, and would undermine procedural fairness, leading to substantial due process concerns,” they wrote.
The Biden administration contends its implementation of bars is different from the bars it previously criticized, in part by allowing asylum officers discretion when applying bars.
But the lawmakers said that innovation opens up another set of issues, including the possibility of inappropriate profiling by asylum officers empowered with that discretion.
Administration officials have defended the officers’ modified roles, including their ability to spot migrants who may qualify for asylum but who don’t know how to make their case.
“It’s really important to highlight that our agents and officers are trained in a number of settings to really be astute observers of kind of any sort of concerning behavior or behavior that indicates an individual is experiencing any sort of distress,” an administration official told reporters on a call Friday.
“So it’s something that our staff are well trained to do, to look for any sort of behaviors that indicate distress or otherwise, and we’re very confident in our people’s ability to take the appropriate action when they see it.”
Ramirez cast doubt on the ability of the Department of Homeland Security (DHS) to provide proper training and conduct oversight of its officers in such a politicized climate.
“It’s based on the individual discretion of the officers, who in some cases are very biased by the political reality that we’re in right now,” she said.
“It’s absolutely crazy to me that that’s what we’re using. And what is really going to happen is we’re going to be fast-tracking these legal decisions, and it’s going to mean that we’re going to increase wrongful deportations. We’re going to be violating people’s obligations under international law to be able to seek asylum in this country.”
Administration officials have insisted that the new asylum rules keeps the United States in check with its international treaty obligations on asylum and refugee processing, but that claim has not yet been tested in court.
Immigration advocates — including the letter’s co-signers — have expressed doubt that the order is consistent with either international obligations or domestic law.
“In addition, the proposed rule offers no plan for how the administration would adhere to domestic and international obligations,” wrote the lawmakers.
An administration official said Friday that “the United States continues to adhere to its international obligations and commitments by screening all individuals [who] manifest a fear during their expedited removal processing or protection under withholding of removal and Convention Against Torture.”
While many advocates have focused their legal critique of the measure on U.S. asylum law’s clear language allowing any foreign national on U.S. soil to claim credible fear and set off the first step of an asylum process, the Democrats dove into Congress’s intent in keeping the bar low for that first step.
“Further, the proposed rule focuses on increasing efficiency in asylum adjudication but fails to address its contradiction to Congress’s clear intent for the credible fear standard to be ‘a low screening standard for admission into the usual full asylum process’ to minimize the risk of screening out noncitizens with potentially sound asylum claims,” they wrote.
Overall, the Democrats pointed to a series of concerns over the empowerment of U.S. border officials to make quick and significant determinations, and prospective asylees facing massively consequential legal decisions without counsel.
“The proposed rule unfairly frontloads highly fact-specific and nuanced legal questions that starve asylum seekers of the opportunity to put their best case forward with guidance from an attorney. As such, this proposed rule cannot comply with existing due process and non-refoulement obligations and contravenes congressional intent, and we urge USCIS to rescind the proposed rule,” they wrote.
“Unless the administration dramatically expands access to legal counsel for asylum seekers in immigration custody and ensures comprehensive safeguards against sending asylum applicants with valid claims back to persecution, the rule cannot be responsibly implemented.”