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Biden has signed an Executive Order "that will temporarily shut down asylum requests once the average number of daily encounters tops 2,500." Given that the current number of asylum requests far exceeds this figure, the border is effectively shut down now.
On one level, this vindicated conservative commentators and legislators who argued that Congress didn't need to pass any bills to shut down the border. Biden apparently agrees!
On the other level, does this take away some steam from Republicans seeking re-election? That's probably what the Democrats are hoping. "See? We care about border security too! Ignore our behavior for the last 40 months." But is it actually going to be effective? And will they just turn on the spigot once the election is over?
Going back to the bill, was there anything on the bill that would have been allowed Biden to accomplish this executive order better? Does the DHS and Border Patrol need more funds to enact this Executive Order? Or is this something well within their existing abilities?
It also appears that this Executive Order contains some gaping holes. It does not apply to the obvious categories (US Citizens, lawful immigrants who make appointments ahead of time) as well as:
Does this render this toothless and just good PR? Or are Border Patrol Agents likely to be very restrictive in their interpretation of the order?
I continue to believe that very close to zero people coming to the Southern border are even close to meeting any ordinary standard of asylum. The entire crisis isn't just self-inflicted, it was created deliberately by people that just don't want there to be any immigration standards at all and found a stupid loophole where they could just encourage migrants to concoct ridiculous stories that meet an arbitrarily low standard of "asylum". Now that this is locked in as the formal policy, migrant-friendly courts will treat these "asylum seekers" as having rights to asylum per international treaties and changing that course is quite difficult.
So, yeah, I am not inclined to think that the people that cooked up this whole ridiculous scheme that has added an enormous number of people to the United States have suddenly had an epiphany any more than I'm inclined to believe that the Senate bill was a good-faith effort to control immigration. The Republicans in the House passed H.R. 2 in 2023, it's a good and reasonable bill that actually controls the border, and it was rejected by Democrats because they're opposed to controlling the border. It's pretty hard to treat the executive branch as differing from that when they literally went to the Supreme Court because they were so mad at Texas for trying to control the border.
They typically can meet the as-written standards of Asylum law, the problem is that those standards were written with a very different intent. The goal of asylum law was largely to protect specific individuals who had specific threats against their lives, like dissidents from Authoritarian regimes. The nature of dissidents is such that there will never be that many of them. At most, the authors thought that Asylum might be granted to small national minorities seeking protection from genocide. There weren't that many Jews in Germany in 1932, and the whole period of Nazi-ism only lasted twelve years.
Asylum law was never intended to apply loosely to the entire population of a country, and certainly not for any length of time. A world where Salvadorans can claim, collectively for decades, credible fear of harm from gangs makes a mockery of Asylum as a concept. The idea needs to be abolished, or reworked from the ground up.
I say this despite being pro-immigration as a broad concept.
[giant nitpick below]
Part of the awkwardness is that they don't, but probably should, at least under progressive assumptions. The federal definition of 'refugee', which asylum requests operate, is :
So fleeing El Salvador because random gangs try to murder people every day because they're not wearing the right tattoos is outside of the definition of asylum. Which is kinda bad as a policy! Even for the central case of "Nazis trying to kill you", it doesn't cover everything (and not just the obvious political exception); modern-day asylum-seekers are jumping through a mess of hard-to-define feelings in front of a judge that has nearly no ability to seriously verify any claims.
As a result, Congress passed the Immigration Act of 1990, which among other things created a new category of Temporary Protected Status, largely focused around the then-present Salvadoran Civil War. These are specifically not refugee status, either under federal or international law, but allowed nonimmigrant aliens to lawfully reside in the United States and maintain work authorizations. But while TPS aliens could theoretically be required to return to their home country after some time, Ramos and difficulty deporting former-TPS holders from the few countries where TPS has ended show the limits of that policy, as does the increasing breadth that Democratic governments are willing to extend TPS for.
But you're only eligible for TPS if you were in the United States before the date that your home country was given TPS. So that's a mess, too.
This was changed by the Biden administration several years ago.
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