Columnist Razvan Sibii: Either respect U.S. immigration law or admit you don’t really care

Migrants walk on the U.S. side of the border wall in Jacumba Hot Springs, California on June 5 after crossing from Mexico. The United States closed its Mexico border to asylum seekers temporarily starting June 5.

Migrants walk on the U.S. side of the border wall in Jacumba Hot Springs, California on June 5 after crossing from Mexico. The United States closed its Mexico border to asylum seekers temporarily starting June 5. AP

Razvan Sibii

Razvan Sibii


Published: 06-17-2024 6:05 PM

Modified: 06-17-2024 7:45 PM

Earlier this month, the White House put out a “Fact Sheet” meant to explain President Biden’s latest immigration-related executive action, which orders American authorities to drastically limit many immigrants’ ability to make their case for asylum when there’s “too many” of them at the border.

The first sentence of that Fact Sheet proudly announced that Biden’s “new actions will bar migrants who cross our Southern border unlawfully from receiving asylum.”

In truth, those “new actions” are cruel, most likely illegal, and unnecessary.

They are cruel because they deny asylum-seekers the chance to receive the protection of the United States — not because they don’t qualify for it, but because the United States somehow can’t figure out how to manage a flow of people at the southern border that is orders of magnitude smaller than the flow of people moving through the country’s airports in an orderly and safe manner on a daily basis.

They are most likely illegal because U.S. law clearly states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum.” (8 USC §1158).

The White House Fact Sheet emphasizes that they’re going after the asylum-seekers who cross the border “unlawfully,” very likely banking on the fact that most Americans, unfamiliar with asylum law and history, will nod their head in approval saying, “Makes sense! If you come in illegally, you can’t expect us to grant you asylum!”

What the White House is omitting from its explanations, however, is that the law explicitly says that an asylum-seeker’s manner of entry into the country does not matter when evaluating the worth of their asylum claim. And there’s a good reason for that.

The people who wrote the law (as well as the people before them who wrote the 1951 Refugee Convention that the U.S. law is based on) knew full well that those refugees who need protection the most are the ones who are least likely to have the luxury of filling paperwork and then wait, in dangerous conditions, to be invited to an asylum interview.

The more desperate the asylum-seeker, the more likely it is that they will cross a border to safety wherever they can, as soon as they can, in any way that they can. Until recently (read: the Trump era), this observation really wasn’t up for debate — it was common sense to all, including Republican congressmen and Republican presidents.

The White House also knows fully well that, these days, most people who cross the border illegally promptly present themselves to border agents in order to lodge an asylum claim. The refugees didn’t make the rules; they simply know that claiming asylum on U.S. territory is better than trying to sign up on “CBP One,” the official American app for asylum claims. (Yup, the U.S. government uses a phone app to line up asylum-seekers. It works just about as well as you would expect it to).

President Trump attempted a similar measure in 2018, and the courts rejected it because it was obviously illegal. The ACLU and other immigrant-rights organizations have already sued the Biden administration for this latest rule, and they’re likely to win. Biden knows that, but he still imposed the rule, in the fourth year of his presidency, for two reasons: 1) While the judges deliberate, he’ll be able to quickly deport lots of people, thus driving the all-important number of “migrant encounters” down for a while; and 2) Good old politics: It looks like he’s doing something about the crisis.

To be sure, the president is absolutely right when he argues that the main problem with the American asylum system is its abysmal funding and staffing. (Did you know, for example, that the U.S. employs fewer than 1,000 asylum officers? By comparison, 17,000 people work at Boston Logan Airport). He’s also right when he points out that it is the Republicans who refuse to fund the system at an appropriate level.

But Biden is wrong when he says that he has no choice but to adopt some of the worst anti-refugee measures of the Trump era. He does have the power to change much about how the immigration system works, even if he doesn’t have the power to fund a drastic increase to its capacity. He and his people know that fully well, too.

And, in all fairness, over the past 3½ years, they have indeed implemented some welcome changes — most notably making generous use of “humanitarian parole” programs to bring in migrants legally and safely.

But true to form, he has shied away from doing anything truly bold, lest Republicans accuse him of being in favor of “open borders” and spook the American people. So, even though he has plenty of other tweaks to the system available to him (some of which I will discuss in next month’s column), he has felt the need to steer a “both/and” course — both allowing many asylum-seekers in and cracking down hard on many other asylum-seekers.

I know Biden wasn’t elected to be a maverick and to be out of step in any way with public opinion. And I understand that he is deeply worried that he will lose the election because more and more Americans are persuaded that we are under attack from “waves” (“hoards,” “swarms” — choose your dehumanizing metaphor) of undocumented immigrants. I too am worried that Trump will win.

But throwing desperate asylum-seekers under the bus in an effort to look tough — and failing at it to boot, judging by the opinion polls — is a pact with the devil that would have been unthinkable before the Trump era. If you don’t want “to normalize Trumpism,” don’t accept performative cruelty from Biden, either.

Razvan Sibii is a senior lecturer of journalism at UMass Amherst. He writes a monthly column on immigration.