Can Biden Do Better? Diluting Asylum at the Border

President Joe Biden meets with U.S. Border Patrol Agents along the U.S.-Mexico border. Photo courtesy of Adam Shultz. 

“And because of his ridiculous, insane and very stupid policies, people are coming in and they’re killing our citizens at a level that we’ve never seen.”

The first U.S. presidential debate on June 27, 2024, featured incessant exchanges over one of the most divisive and vote-deciding issues for the upcoming election: immigration. Former President Donald Trump launched into criticism of his successor’s immigration policies, following a pattern of responses that repeatedly strayed from the moderators’ initial line of questioning to issues at the border. Both candidates’ arguments created the illusion that President Joe Biden’s immigration record is extremely dissimilar from Trump’s. In reality, however, the main difference between the last two administrations has been that of enforcement.

When Biden took office, he promised to enact more humane border policies than Trump and pledged to reunite migrant families that were separated under Trump’s unethical family separation policy. Regarding the key issue of asylum, however, Biden’s policies have largely followed in the footsteps of his predecessor. By diluting access to the fundamental human right of asylum, Biden is just as immoral at the southern border. Although he is no longer running for re-election, the president has the power to reverse his administration’s dangerous course in the last months of his tenure.

The roots of asylum stem from an international legal convention that was enshrined into U.S. law in 1980. According to the Convention and Protocol Relating to the Status of Refugees and the Refugee Act of 1980, a refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Under U.S. law, any individual who arrives in the U.S. at a port of entry is eligible to apply for asylum under these criteria, regardless of the legality of their entry. After applying, individuals remain in the U.S. until their case is adjudicated. The average backlog wait time, as estimated in Fiscal Year 2022, is 4.3 years.

A central critique of the current asylum system is that migrants take advantage of the backlog and apply for asylum even if they are not fleeing persecution, diverting public attention and resources away from migrants who find themselves in the most dire of circumstances. This “loophole” is a weakness of the system, to be certain, as the shortage of asylum officers and immigration judges has profoundly contributed to longer asylum processing times, decelerating the adjudication of legitimate asylum claims. That does not mean the solution to this deficit is curtailing access, even temporarily, to a human right.

Policies advanced by the Trump administration such as “Title 42” deportations and the Migrant Protection Protocols (also known as “Remain in Mexico”) did just this—limit access to asylum. “Title 42” refers to migrant expulsions initiated by Trump during the COVID-19 era, and continued by Biden through 2022, aimed at preventing the spread of communicable diseases under Section 265 of Title 42 of the U.S. Code. Under this policy, over 2.9 million expulsions occurred and a reported 13,480 violent crimes were committed against migrants. Similarly, under the “Remain in Mexico” policy created under Trump in 2018, migrants who applied for asylum either at a port of entry or after entering the U.S. between two ports of entry were given notices to appear in court and then were deported back to Mexico to wait for their court hearing. This policy also severely restricted asylum seekers’ right to due process and was terminated by Biden when he took office, citing severe human rights violations. Although both of these programs are gone, Biden recently enacted a policy that has similarly limited the right to seek asylum.

On June 4, 2024, in response to “emergency border circumstances,” the Biden administration published an interim final rule curtailing the number of migrants who can enter the United States and apply for asylum at the southern border. This executive order mandates that official border encounters fall below a seven-day consecutive average of 1,500 per day. Once this threshold is met, the limitation is discontinued 14 days later, but will resume again if another seven-day consecutive average of over 2,500 encounters is reached. There are some exceptions to this limitation, but the rule states that those to whom the executive action does apply will be “ineligible for asylum unless they demonstrate by a preponderance of the evidence that exceptionally compelling circumstances exist” such as an “imminent and extreme threat to life or safety.” Not only is this high threshold extremely arbitrary, but also completely adverse to the principles and legal statute of asylum. According to both U.S. and international law, there is no cap on the number of people who can apply for asylum, and all individuals are afforded the right to seek protection from persecution—not by the criteria that they must prove an “exceptional” fear of return to their home country.

Mirroring Trump’s policies, Biden’s executive action is dangerous for migrants and futile in addressing the actual root of the “border crisis.” By limiting this protection in the name of relieving pressure on border processing and in response to political pressure, Biden diminishes a vital human right and further endangers migrants seeking relief. Forced to wait in Mexican border cities for entry into the U.S., migrants face extortion, kidnapping, sexual violence, and abuse at the hands of criminal groups and other corrupt government officials, contributing to high death tolls along the border. Moreover, it is essential to note that the order only applies to migrants seeking asylum at the southern border. All asylum seekers arriving at other ports of entry (defined as any airport or official land crossing) will not be prevented from doing so, meaning that the policy subjects a specific demographic of migrants, mostly from Central and South America, to the extreme dangers of being turned away at the border.

Analysis shows that policies aimed at limiting entry at the border have short-term effects. It is true that border encounters have fallen since Biden’s interim rule was enacted, with just under 84,000 encounters reported by Border Patrol in June, a 29% drop from May levels. These decreased numbers may temporarily relieve entry processes for Border Patrol at the southern border, accelerating initial case reviews and removal decisions. However, this policy and similar others implemented during the Trump administration are the furthest possibility from lasting solutions that would implement change where it is needed most—beyond border processing and within the adjudication system.

Adam Isacson, the Director for Defense Oversight at the Washington Office on Latin America and a leading migration expert, argues that the best solutions expand asylum processing and adjudication capacity. This could be done via increased funding for the hiring of more judges and asylum officers to eliminate, or at least reduce, the application backlog. Isacson points out that fewer migrants would opt into the asylum processing system if wait times were shorter, because the guaranteed time of remaining in the U.S. until their case is adjudicated would be less. The solutions are known and possible—they just haven’t been adequately attempted yet.

When Biden announced his asylum-curtailing policy just before he ended his re-election campaign in July, many believed that this policy was a last-ditch attempt at improving his re-election optics to combat GOP talking points that he hasn’t done enough at the border. Though not an excuse for bad policy, this political dilemma might explain why Biden chose to institute yet another rule aimed at deterring asylum seekers. It is also true that Biden attempted to pass more comprehensive solutions through his bipartisan border package in February 2024, which failed because Trump instructed Republican lawmakers to vote no. This bill would have moved in the right direction in terms of increased funding for the Department of Homeland Security (DHS) and other agencies to improve application processing speeds and reduce backlogs. Unfortunately, it still contained provisions barring asylum access and limiting the scope of what a successful asylum claim can be. For example, the bill proposed raising the standard for claiming asylum at initial screenings, where many migrants may be unprepared to defend their case with less time to gather evidence. So close, yet so far.

With no political future beyond January 2025 in sight, Biden can change pace and initiate the Democratic Party’s work toward real, comprehensive immigration reform. Of course there are limitations to what a president can do with their last months in office, but this is the time to change the tide on asylum and Biden can take the first steps. Limiting reform to border processing is not a practical long-term solution and only works to endanger migrants in the short-term. Thus, Biden can reverse the damage he has done to asylum seekers at the border and rescind the rule barring access to asylum due process. This is a crucial first step. While doubtful that Biden can work with Congress on another bipartisan border bill with the election upcoming, he can encourage funding to be included in DHS appropriations for increased adjudication capacity to work toward reducing the asylum backlog.

If elected, Vice President Kamala Harris also has the opportunity to enact positive change for the asylum process. She has promised to be tough on border security and pledged to sign the bipartisan border bill that was killed earlier this year into law, hopefully without the provisions restricting successful asylum claims. Additionally, Harris has acknowledged the necessity of hiring more border agents, recognizing the need for comprehensive reform. In her quest to be tough on border control, it would be wise for her to recognize that this can be done while upholding asylum and distancing herself from Biden and Trump’s actions.

The presidential debate between Biden and Trump supposedly “highlighted glaring differences in how each candidate views the crisis at the U.S.-Mexico border.” If their views are so different, why has Biden enacted the same asylum-limiting policies that Trump did? Biden has failed to be progressive—or act according to legal statutes—with his asylum policies, curtailing an essential human right and endangering migrants in the process. The solutions to asylum remain beyond the border, within the adjudication system, and it is Biden who can begin the process of reaching them.

Delaney Dermody (BC ’25) is a staff writer from Seattle, WA. She studies political science and religion, and is interested in immigration policy, congressional reform, and democratic initiatives and engagement. She can be reached at dad2223@barnard.edu.