Biden Limits Asylum & Shuts Down Border for Migrants Ahead of Debate with Trump

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman, with Juan González.

Weeks before his first debate with Republican rival Donald Trump, President Biden has issued his most restrictive immigration policies yet. On Tuesday, Biden signed an executive order that went into effect at midnight and will continue to codify the far right’s anti-immigration agenda by temporarily shutting down the U.S.-Mexico border and severely restricting protections for migrants seeking asylum. The order will deny asylum to most migrants who cross outside U.S. ports of entry. The new measures limit asylum requests at the southern border to no more than 2,500 per day. The border would be closed if the seven-day average for daily asylum claims passes that figure, and would reopen only after the number drops to 1,500 for seven days in a row and remains that way for at least two weeks.

President Biden spoke from the White House Tuesday, joined by border city mayors.

PRESIDENT JOE BIDEN: This ban will remain in place until the number of people trying to enter illegally is reduced to a level that our system can effectively manage.

AMY GOODMAN: The American Civil Liberties Union has threatened to sue Biden over the executive order. ACLU attorney Lee Gelernt said, quote, “It was illegal when Trump did it, and it is no less illegal now,” unquote.

Several Democratic lawmakers also blasted the new policies. This is Congressmember Pramila Jayapal, chair of the Congressional Progressive Caucus.

REP. PRAMILA JAYAPAL: We are making the same mistake again that Democrats continually make when we try to out-Republican the Republicans. It does not work. It does not work. It does not solve the situation at the border. It dramatically curtails the ability for people to seek asylum at the border, which is what our domestic laws and our international treaty obligations require.

AMY GOODMAN: She was speaking at a podium that said “#AsylumIsARight.” Congressmembers were joined by immigration rights advocates at a press conference in D.C. Tuesday. This is Guerline Jozef, executive director of Haitian Bridge Alliance.

GUERLINE JOZEF: It will cause people dying every single day. We say, “Not in our names.” And we continue to stand on behalf of those families of those children, little boys and little girls, we see begging, crying, asking, pleading for safety and protection.

AMY GOODMAN: Meanwhile, asylum seekers forced to wait in Ciudad Juárez, Mexico, across the border from El Paso, Texas, criticized the executive order. This is a Venezuelan migrant.

RAMON EDUARDO: [translated] That is unfair. It is unfair, because how are we going to know if they are over the limit? They can always say that they have already exceeded 2,500, and then everyone goes back. That’s like a trap.

AMY GOODMAN: President Biden has also reportedly cut the time asylum seekers have to obtain legal assistance before their credible fear interview, from 24 hours to just four hours.

For more, we go to the border. We go to Tucson, Arizona, where we’re joined by John Washington, a reporter for the independent news outlet Arizona Luminaria and author of the new book The Case for Open Borders, as well as The Dispossessed: A Story of Asylum at the U.S.-Mexican Border and Beyond.

We welcome you to Democracy Now!, John. If you can start off by explaining exactly what this executive order says, that went into effect at midnight, and the significance of this coming right before President Biden has his first debate with Donald Trump?

JOHN WASHINGTON: Yeah. Thanks so much for having me, Amy.

Well, there’s still a lot to be seen, exactly how this bill — or, how this rule, rather, will be implemented. We know that a lot of it is going to depend on Mexico. We saw early signs yesterday that the lame-duck president of Mexico met with President Biden and seems to be willing to cooperate. But the way that this will actually impact people really still remains to be seen.

But what we do know is that we see again that President Biden has been willing to turn his back to a lot of the campaign promises, a lot of the initial policies that he tried to put forward, and is not upholding asylum or not engaging in the effort to restore asylum as he promised. And we know that the effects are going to be excruciating and likely deadly on people who are trying to seek asylum and who are some of the most vulnerable people in the world right now.

So, there are number of provisions in this order. You mentioned a couple of them already. This includes limiting the number of hours that people have access to attorneys. It also significantly raises the threshold for achieving asylum. So, right now it is already out of reach for most people because of an order that was put in place about a year ago today to replace Title 42. And this further raises the bar for people. That is going to make folks be sent back to their country of origin.

It’s going to violate, as the previous clip mentioned, international and domestic law. It’s really important to point out that an “illegal asylum seeker” is a contradiction in terms. People have the right, according to U.S. law, to ask for asylum, irrespective of how they cross the border or where they are or what their status is. And this rule really flies in the face of that.

A couple more concrete things that we’re seeing in this is that instead of Border Patrol being required to proactively ask everyone they come in contact with if they have any fear of returning to their home country — there’s a series of questions that they’re obligated to ask — now it is going to be up to the person themselves to manifest that fear. It’s called something like the “shout test,” where they have to themselves make it clear that they’re scared to go back to their country of origin or potentially be deported back into Mexico. This is a problem for a number of reasons. The conditions that these people are required to make that claim in are very difficult. They have just been arrested. They have just probably gone through weeks, potentially months, of a very arduous journey to arrive to this point. And they are dealing with people that we know — I’ve reported on Border Patrol screening, doing these screenings before, and we know that there’s plenty of reports that say that they actually just won’t listen to them. It makes it a little bit easier, eliminates some paperwork for Border Patrol, and people now are going to be forced to make these claims themselves.

Also, the exemptions and exceptions are narrowed for people who can access asylum. Right now the way that the government is trying to push people to do it is by accessing an appointment via an online or phone app. That option is limited to only 1,450 people a day. And there are some exceptions to this, but this new rule actually lessons those exceptions, so less people are going to be able to access them. And what it’s going to do is it’s going to coerce people to make more deadly trips into the desert to try to avoid detection, rather than turning themselves in, as is the case most of the times now.

And also, this rule does not apply to unaccompanied minors, which potentially will lead to sort of something like coerced family separations, where parents — and I’ve seen this firsthand — who are bottled up in northern Mexico and are waiting to try to do it, quote-unquote, “the right way,” realize that there actually isn’t an option or that they’ll have to wait months or more, and so they will send their kids across alone, and then they themselves will try to make a claim later on.

JUAN GONZÁLEZ: John, I wanted to ask you specifically about the cutoff number that President Biden has in this executive order. When the president was backing in Congress a bill in Congress, the number that he was using that would trigger a shutdown of the border was 5,000 crossings a day, and he’s lowered it to 2,500, even though the number of people crossing has dropped dramatically in recent months. He, in essence, guaranteed that on day one he would be shutting down the border, just a few weeks before his debate with President Trump. I’m wondering your sense of the use of numbers here to determine a policy.

JOHN WASHINGTON: Yeah, that’s right. So, the current average encounters that Border Patrol has is around 4,000. So, yeah, you’re right that this bill — or, sorry, this order was triggered immediately. And you point out also that this is sort of cribbed from a bipartisan Senate bill that was put out late last year and then again early this year, and that number was 5,000. So, Biden has shown that he’s actually willing to be even harder on asylum seekers and harder on the border than this bipartisan bill, that had the backing, for a short period, from Republicans.

And we haven’t seen numbers drop below 1,500 for about four years. So, though this bill is triggered automatically as of about six hours ago, we don’t know when it possibly will be suspended, when those numbers drop below 1,500. And one of the reasons we don’t know that — or, we know that this is going to be a while before that happens is because these sorts of measures don’t really work. I mentioned before that there was a rule put in place to replace Title 42. And what we saw with what was at that point, a year ago, the most restrictive asylum policy that we’ve seen in a while, we saw numbers increase dramatically. Same with Title 42, which was in place for three years before that. As soon as it was implemented — or, soon after it was implemented, rather, we saw numbers start to go up. So, I don’t know when asylum will possibly be restored again at our border, but it does not look good.

JUAN GONZÁLEZ: And at the same time that the president’s order is taking effect, the news reports out of Arizona show that the Arizona Legislature is now passing a new resolution calling for a referendum on a Secure Border Act. I’m wondering if you could talk about what’s happening in Arizona and how, in essence, immigration is becoming perhaps the most important and volatile issue in the nation right now as we head into the presidential election.

JOHN WASHINGTON: Right. Just yesterday, there was a flurry of immigration and border news yesterday, but just yesterday, the Arizona state Legislature decided — voted to send to the ballot in November a referendum which would make it a state crime to cross the border without authorization. It would also empower local judges to potentially deport people.

We have tried this before. The notorious Arizona law S.B. 1070 was passed 14 years ago, and it was shot down by the courts. And one of the — the provisions that were shot down, actually, were these exact ones that will be on the ballot again, making it a state crime, empowering local law enforcement to make arrests for immigration violations. That, historically and currently, is the obligation of the federal government. These are not state crimes. And we see this actually happening in Texas, as well. Texas tried to pass this, a very, very similar provision.

I think this calls out a key thing here, is that it seems as if the federal government, in some of these cases, is sort of playing the other side and is, you know, against Texas or potentially this new Arizona bill, but actually they are vying for the authority to enforce immigration themselves. They are not on opposite sides of this issue, as we see yesterday with this new executive order, which is the most severe crackdown on asylum we’ve seen in years.

AMY GOODMAN: And in the last few seconds we have, John, what will this mean when it comes to border deaths?

JOHN WASHINGTON: Well, as I said, you know, limiting legal and safe and somewhat orderly pathways for people to present asylum claims immediately pushes them deeper into the desert. It forces them to ford or try to get across the river in Texas. And we know what happens there. We have a pattern, that is going back decades now, of people being pushed by these draconian measures to take to the deserts and the wilderness, and they die. And yeah.

AMY GOODMAN: We have to leave it there, but we’re going to continue this discussion and post it online at democracynow.org and talk about your case for open borders. Then we’re also going to do an interview in Spanish and post it on our Spanish website. I’m Amy Goodman, with Juan González.