The results have been mixed. So far in fiscal 2024, border patrol agents have encountered about 1.2 million migrants trying to enter the United States illegally, roughly the same as in the equivalent periods of 2023 and 2022. Polls show that voters are concerned about irregular migration and favor former president Donald Trump on the issue to Mr. Biden and the Democrats. So on Tuesday, Mr. Biden decided to crack down; in a measure reminiscent of Mr. Trump’s approach, he issued an executive order empowering officials to refuse asylum to migrants entering the United States illegally, once illegal crossings exceed a certain threshold: 2,500 per day.
The odds of success remain long. Courts blocked Mr. Trump’s 2018 attempt to shut down asylum on the grounds that people on U.S. soil have a legal right to request asylum regardless of how they arrived. Mr. Biden’s executive order comes with no new funding. Even if it passes legal muster, this lack of resources will hamper its deterrent impact.
Nevertheless, Mr. Biden’s U-turn on immigration — from promising amnesty for potentially millions of undocumented immigrants early in his administration to adopting a version of his predecessor’s hard line on asylum now — amounts to an inflection point in American history.
Either a polarized Washington will manage to craft a new asylum regime — with clear criteria for eligibility backed by credible, swift enforcement — or the very right to asylum, which emerged in international and U.S. law as a response to war and totalitarianism in the mid-20th century, will be put at risk.
The laws governing asylum were not designed for today’s world. They didn’t envisage people fleeing multiple failed states en masse, or states largely controlled by brutal criminal organizations. They didn’t imagine climate change. Nor did they anticipate advances in transportation and social media, which have helped migrants navigate journeys — from as far away as Central Asia — to the U.S. southern border that would have been impossible just a quarter-century ago.
They clearly did not anticipate the surge of people seeking protection since the end of the coronavirus pandemic. In 2022, the United States handled more than 750,000 asylum applications, according to the U.N. High Commissioner for Refugees. That is more than 10 times as many as a decade earlier.
Perhaps the United States must establish new standards for asylum. What matters most, though, is sending a credible signal around the world that it can enforce whatever rules it has.
The Biden administration hopes its new signal will be heard loud and clear: People will still have a right to request asylum. But they will have to prove there is a “reasonable probability” they would be persecuted or tortured back home, a tougher standard to meet. Crucially, U.S. agents will no longer ask them about their fears. They will have to assert them unprompted. Those denied will face a minimum five-year reentry ban and possible criminal prosecution.
No doubt, migrants will get the message via the human-smuggling grapevine. But they will receive it in the context of well-known, on-the-ground reality: The United States has few agents to determine whether migrants meet the standards. It does not have enough beds to house migrants as long as these things remain undetermined. Nor does it have the means to quickly expel those found ineligible. Some countries don’t take their people back.
These problems could have been eased via the bipartisan Senate border deal reached in February. It would have funded more than 4,300 new asylum officers, 100 additional immigration judges and their staffs, more than 1,500 new Border Patrol agents and customs officers, and more than 1,200 additional Immigration and Customs Enforcement personnel to help with deportations. It would have increased detention capacity and deportation flights.
At Mr. Trump’s behest, Republicans torpedoed the bill, lest Mr. Biden reap a political win. But it still stands as evidence that a deal could be done — a better way to deal with this country’s dysfunctional asylum system than one desperate executive order.
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