Joe Biden is contemplating a range of actions at the border, many of which mirror actions taken by Donald Trump in the early days of his presidency.
Most of Trump's plans were blocked by the courts. Biden knows that many of the plans under discussion currently in the White House would also be blocked by appeals courts. Failing to get Congress to pass anything, Biden is stuck with PR gambits like sending up trial balloons about imaginary border policies.
Among the ideas the Biden White House is floating is using a section of the Immigration and Nationality Act of 1952 to bar illegal aliens from seeking asylum if they arrive in the U.S. between ports of entry. There's nothing in international law that says an asylum seeker wanting to enter the U.S. looking to be sheltered can enter anywhere along the border. Forcing illegals to enter at designated points would allow the U.S. better control over who comes in and should reduce the number of asylum seekers.
“The courts were emphatic that the Trump administration could not deny asylum based simply on how one entered the country,” Lee Gelernt, a lawyer with the ACLU said. “Hopefully the Biden administration is not considering recycling this patently unlawful and unworkable policy.”
"Unlawful" in America, perhaps. It's certainly not against international law for America to be able to say who can come in and who stays out.
There are also discussions about raising the "credible fear" standard. This is easily the most abused standard for asylum seekers who would have to prove they were in imminent danger if they returned.
There are also plans being discussed for "expedited deportation." This was used extensively during the pandemic under Title 42 and turned away about 40% of all border crossers. But with no pandemic, the restrictions are likely to fail to pass muster in federal court.
One angle the White House is playing is that the executive orders wouldn't be necessary if the bipartisan border bill had passed.
“The Administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system,” said White House spokesperson Angelo Fernández Hernández.
“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected,” he continued.
The three people familiar with the planning cautioned that the details of proposed actions remain murky and that the impact of the policies — particularly the asylum ban — is also dependent on the specific language of the federal regulation, they said. For example, the Senate bill included exceptions for unaccompanied minors and people who meet the requirements of the United Nations Convention Against Torture rules.
There are other complications as well. The implementation of any action from the White House would come without the funding and resources that could make implementation easier, though the administration is looking into ways to unlock additional funding. The actions would likely face legal challenges as well.
Trump used the loophole in the Immigration and Nationality Act to fashion federal policy. But courts ruled that the efforts were unconstitutional and knocked most of them down.
Biden is angering immigration advocates who claim he's going back on his promise to create a more "humane" immigration system after Trump. But Trump was creating policies to deal with a crisis at the border just like Biden is doing now.
Funny how both presidents came up with the same solutions.
