At least the White House got the headlines it wanted.
On Tuesday, President Joe Biden declared that he was using executive authority to create a new “emergency” policy regime at the U.S.-Mexico border, which would generally prevent people who crossed illegally from receiving asylum in the United States. The declaration (using the same provision of immigration law that President Donald Trump used for his travel bans, as well as for a similar asylum ban quickly struck down by the courts in 2018) “suspends the entry” of most people who come without papers or an appointment at an official port of entry. The suspension will remain in place until border apprehensions drop to 1,500 per day — a level rarely seen for half a decade.
The move was dutifully reported as Biden taking action to “seal” the border where Congress had once again failed, and media outlets reported that would-be asylum-seekers would instead be expelled to Mexico or their home countries. The problem is that this isn’t an accurate description of what the new policy will do, merely what the White House hopes it will do. And while Biden may be taking a short-term victory lap, it’s hard to envision the new policy reducing chaos at the border in a lasting way — and even harder to envision that migrants, and the public, won’t notice that things aren’t going according to plan.
Biden can issue proclamations ‘suspending the entry’ of border crossers, but he can’t proclaim billions of dollars into existence to pay for their flights home.
To start with, the administration is benefiting from some confusion over what Biden actually did. It’s true that under the proclamation — and, just as importantly, the new regulation (published in “interim final” form) that came along with it — irregular border crossers are generally prevented from receiving the immigration status known as asylum. But that’s not the same as saying they’re prevented from staying in the U.S. International agreements prevent the U.S. from deporting someone to a country where they will be persecuted on the basis of specific grounds of identity or from delivering torture victims back to the governments that torture them. Under normal conditions, such people can often qualify for asylum in the U.S.; even if they don’t (because of a criminal record, for example), they may qualify for lesser forms of protection that can’t be converted to citizenship but can come with work permits. Those latter protections are still available under Biden’s proclamation, no matter how many people are crossing the border.
The new regulation takes steps to make it harder for people to make it through the early stages of the process to receive such protections. First, and most importantly, border agents are no longer required to ask someone if they fear persecution before deporting them. The burden is on the migrant to say they want asylum or that they fear going back. Some people likely won’t do that, or don’t know they’ll have to, and there’s plenty of evidence that even when people express fear, border agents don’t always listen. This change alone may have a significant effect on the number of people allowed to seek protection in the U.S.
Those who pass this first hurdle will then be screened by asylum officers, where they’ll have to demonstrate a “reasonable probability” that a judge will ultimately find they qualify for protection. This “reasonable probability” standard is completely new, and no one knows yet what it means. The regulation specifies that it’s a “substantially higher” standard than the previous one (“reasonable possibility”) yet “somewhat lower” standard than “more likely than not.” The magnitude of the shift won’t be clear until we start to see interview passage rates.
The administration’s theory of the case, laid out in internal guidance to Immigration and Customs Enforcement agents, is that these two procedural changes — plus the fact that even those who surmount both hurdles will be eligible only for sub-asylum protections — will allow ICE to deport the overwhelming majority of border crossers in a matter of days. That, they hope, will send a strong message to potential future migrants not to come at all.
But here’s what the administration refuses to acknowledge: Even before Tuesday, the problems with border processing weren’t about who was eligible for what form of protection. They were about resource bottlenecks.
Crackdowns don’t just fail to create that order on their own; they siphon away the resources that could be used to improve processing and efficiency.
Biden can issue proclamations “suspending the entry” of border crossers, but he can’t proclaim billions of dollars into existence to pay for their flights home. The population of migrants entering the U.S. irregularly is more diverse than ever, which means there are a lot of countries to deport people to. Under Trump and Biden alike, the United States’ most effective hack has been getting Mexico to accept non-Mexicans from the border. But Mexico isn’t expanding existing deals to accommodate Biden’s “emergency” declaration.
The longer it takes to fill a deportation flight, the longer people have to be detained — even though the U.S. lacks the capacity to detain more than a few families for any length of time. Holding a migrant for a screening interview will take longer still. And there are fewer than 1,000 asylum officers in the U.S., far below what is needed to screen everyone. The bottlenecks have meant that most of these migrants were released from Border Patrol custody with notices to appear before an immigration judge at a later date, without being screened by asylum officers at all. The problem, in other words, wasn’t that the “reasonable possibility” standard was too low but that some people were being subjected to it while many more were not. Crackdowns are more resource-intensive than the alternative: For example, the higher the screening standard, the longer the interview is to complete. The result, in practice, is a bigger disparity between those subject to the crackdown and those who are not. Biden’s proclamation even allows border agents to exempt people from the asylum ban due to “operational considerations” — an acknowledgment of this reality that also exposes the declaration’s arbitrary nature. Headlines declaring the border closed can buy a government a little bit of time with would-be migrants; generally, a crackdown engenders a “wait and see” period of a few weeks or months. But once it becomes clear that the new policy isn’t prohibiting literally everyone from entry, the deterrent effect fades. It’s quite possible that border numbers will drop over the summer. It’s harder to imagine that they won’t rise at any point between now and, say, November. The opposite of border chaos is, obviously, border order: clear, consistent processing that runs smoothly with a minimum of bottlenecks. Crackdowns don’t just fail to create that order on their own; they siphon away the resources that could be used to improve processing and efficiency. Biden’s declaration got him the headlines he wanted this week, but may have set the stage for headlines later in the year he very much does not want.
Dara Lind
Dara Lind is a senior fellow at the American Immigration Council and a longtime immigration reporter. 
