Suspension of the asylum regulation – The Texas Observer

Originally published by Houston Landing; republished with permission.

JUÁREZ – Dayana secured a shady spot at marker 36 along the Juárez border Tuesday afternoon to attempt to enter the United States for the fourth time in 24 hours.

For the 33-year-old Venezuelan mother, it was an uphill struggle to cross the border with her husband and two daughters, aged 10 and 7 months. New restrictions come into force at midnight that will immediately deport people crossing between border crossings.

“We don’t want to get stuck in Mexico,” said Dayana, who is only referred to by her first name because she fled political persecution in Venezuela, in Spanish.

Dayana and her family attempt to cross the border from Juárez, just hours after President Joe Biden announced an executive order on Tuesday that will suspend asylum at the southern border. The highly anticipated announcement comes as Biden seeks to prove his tough stance on immigration, one of the most important issues for voters in the upcoming November election.

The new rule, which takes effect at midnight Tuesday, will trigger an asylum ban when the number of border crossings reaches 2,500 per day, according to the White House. This will allow border agents to quickly deport migrants to Mexico or their home country after they cross either of the two ports of entry. Processing of asylum applications would resume 14 days after the number of border crossings falls below 1,500 per day. Since the number of border crossings has averaged 3,500 daily in recent weeks, the change would take effect immediately.

The Biden administration has stressed the need to streamline the asylum process to deter immigration and reduce the backlog in immigration courts that has reached more than three million cases nationwide, but human rights groups and lawyers have criticized the decision as politically motivated.

“This is not a response to the high number of border crossings, but a purely political move to create a tough impression at the border ahead of the debates,” Amy Fischer, refugee and migrant rights director at Amnesty International USA, said in a statement to Houston Landing.

The new policy would work similarly to a Covid-era rule known as Title 42, which immediately expelled migrants to Mexico after crossing the border.

Some migrants are exempt under the new rule, including children under 18 traveling alone. Migrants who request an appointment for screening at a port of entry using the government’s CBP One smartphone app will still be eligible for asylum. However, the months-long wait times and constant technical glitches in the app have been criticized as an obstacle to asylum.

The executive order invokes a law called 212(f), which gives the president the authority to deny people entry into the country. Trump invoked the same authority, including when he issued the controversial Muslim travel ban. But courts have ruled that the president’s authority under 212(f) cannot override other immigration laws, such as the right to seek asylum.

The new rule is already being challenged, and the ACLU announced Tuesday that it plans to sue the government over the law. “It was illegal when Trump did it, and it is no less illegal today,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement.

Meanwhile, activists expect increasing chaos at the border in the coming days, as well as increased violations of human rights and due process.

“Restricting asylum access at the border does not make things more orderly. It makes them unnecessarily complicated,” said Amy Grenier, legal counsel at the American Immigration Lawyers Association.

At a shelter in Juárez on Tuesday, the immigrants didn’t know much about Washington’s policies, but rumors of change worried them.

The migrants, from across Latin America, including Mexico, Honduras and Colombia, were waiting for an appointment to apply for asylum through the CBP One app. After waiting up to seven months, some considered entering illegally, which would disqualify them from asylum under the new rules.

A 21-year-old woman from Guatemala said she became nervous after waiting six months for an appointment.

“It’s a psychological and physical burden to wait here and not know when you’ll get an appointment,” said the woman, who asked to remain anonymous because she faced threats and sexual harassment in her hometown. “But if you turn yourself in, they can deport you.”

Friends and family keep advising 46-year-old migrant Fidelina Pineda from Honduras to cross the border illegally, but she is trying to stick to her decision to wait for an appointment.

“I have to be patient, but sometimes I lose hope,” said Pineda, who fled Honduras in November 2023 after her teenage son was murdered and hopes to be reunited with her brother and sister in Houston.

Political changes always lead to uncertainty among migrants, said the director of the shelter, Pastor Juan Fierro.

“Even though they use CBP One and schedule an appointment every day, they are afraid of what might happen,” Fierro said.

The U.S. government often pursues a so-called “deterrence policy,” assuming that migrants will not cross the border if it is too difficult.

“As far as I know, migrants don’t know the details of these extremely complicated rules, nor how their interactions affect them,” says Kathleen Bush-Joseph, a lawyer and policy analyst at the Migration Policy Institute. “Ultimately, people make decisions based on their individual circumstances.”

Dayana said she had been requesting an appointment through CBP One for five months that would allow her to apply for asylum. But her husband’s phone barely had a charge and the app often malfunctioned, so she lost hope of getting an appointment. So she decided to cross the border, even though it might hurt her chances of asylum.

The new regulation comes as migrants like Dayana already have limited access to asylum. Since May 2023, migrants must request an appointment to receive asylum through a government smartphone app called CBP One. The government offers about 1,500 appointments a day through the app, using a lottery system that has been criticized for human rights abuses and endangering migrants in Mexican border cities.

Lawyers and advocacy groups expect the operational bottlenecks and risks to migrants posed by current asylum restrictions to worsen under the new rules.

Many migrants who are ineligible under the May 2023 rule are still being released into the U.S. because there aren’t enough asylum officers to screen everyone. Others can’t be deported because their home countries, such as Venezuela, don’t accept deportations. These immigrants often end up in immigration court in Houston, where more than 93,000 cases are currently pending, according to Syracuse University’s Transactional Records Access Clearinghouse.

“While the administration would like to send back everyone at the border who is ineligible for asylum, it is unable to do so because it does not have enough asylum officers to screen people and send them back quickly,” Bush-Joseph said. The White House statement made no mention of increasing funding or hiring staff to screen asylum seekers.

These operational issues underscore the challenges associated with closing asylum, a right that exists under both U.S. and international law.

“Everyone wants a quick fix for the border, but immigration is really complicated,” said AILA’s Grenier. “We’re not going to find a fix for the border without looking at the entire immigration system, which will involve Congress.”

The White House criticized Republicans on Tuesday for failing to pass border legislation earlier this year. “Republicans in Congress have chosen to put partisan politics above our national security by twice voting against the toughest and fairest reform package in decades,” the White House statement said.

Migrants like Dayana cannot wait any longer.

“I have hope and trust that they will still let us in,” she said.