Biden's Expansion of Asylum Rule Would Cause Border Chaos

When President Biden recently signed executive orders, effectively reversing the previous administration's efforts to reduce the increase in illegal crossings on the southern border in 2019, he stated, "I am not making new law. I am eliminating bad policies. "The obvious intent of the statement was to dispel any suggestion that the newly elected president would infringe the constitutionally exclusive legislative authority of Congress. But an inspection of one of those orders reveals that one of the president's initiatives seems to have been forgotten.

The injunction includes a provision to "conduct a comprehensive investigation of the current" executive branch policy "that regulates the processing of asylum applications … to assess whether the United States is providing protection to those fleeing from home. violence or gang violence in a manner consistent with international standards. "

On the face of it, this does not seem necessary, as the US asylum law already conforms to "international standards". What is not so helpful for the man who made the proclamation about "not making a new law", however, is that those international standards contain no language that can be inferred that they are "fleeing from home. violence or gang violence & # 39 ;.

Much of US asylum law came about as a result of acceding to the 1951 Convention Relating to the Status of Refugees and its subsequent 1967 Protocol. Federal statute allows the US government to "grant asylum to an alien who has asylum. requested "if the government" determines that such an alien is a refugee ". The key to the current discussion is the definition of the word & # 39; refugee & # 39 ;. A refugee is defined in federal statute with a language almost identical to that in the 1951 Convention – a "refugee" is in fact "any person who is outside" the country of their national home or, if they do not have one. , out there. the country where they last had their habitual residence, and who cannot or will not return to, and is unable or unwilling to enjoy the protection of that country because of persecution or a well-founded fear of persecution for race, religion , nationality, membership of a particular social group or political opinion. "

In 2018, in response to a number of asylum applications from individuals who claim to have been victims of non-state actors (e.g., spouses, gang members) rather than prosecution as a result of government policies, then Attorney General Jeff Sessions issued an interim decision which distinguishes between the two classes and effectively disqualifies those who could not prove political persecution. This policy – which is clearly consistent with federal statute and "international standards" – was found illegal by a federal court judge.

There is now evidence that the Biden administration is sending signals of its position to the wider legal community, which may include the federal judiciary.

In a lawsuit filed last week by the ACLU of Massachusetts and a Boston-based law firm, messaging that integrates the text of the statute and the text of President Biden's warrant appears to be holding up. In their quest to undo a Trump administration directive applying public health laws to deny individuals entry to the U.S. because of the COVID pandemic, representatives of the two litigants seem to be talking points from the president's order. to get.

In explaining the law firm's motivation for filing the complaint against the US government, a lead attorney explained, “We are proud of the work we are doing to reunite families legally seeking refuge in the US … and who are) in our immigration system… fleeing violence and persecution in their home countries. “In contrast to political persecution, there is in fact no legal basis for granting asylum based on 'fleeing violence'. But that clearly does not stop President Biden and like-minded lawyers from actually arguing. that the statute is nothing more than a foundation on which the executive and judicial divisions must build.

So much for the rule of law.

This likely driver of mass migration to the US southern border is reinforced by the climate of violence prevailing in the Northern Triangle countries – Guatemala, Honduras and El Salvador – and the understandable desire for their subjects to flee. According to former Assistant U.S. Attorney and Senior Fellow in Border Security for the Texas Public Policy Foundation Josh Jones, due to the power and influence of violent gangs, much of the population of the Northern Triangle would likely be eligible under the revised rules . Additionally, Jones notes that if one or more Mexico-based transnational criminal organizations were classified as a "gang" for asylum policy purposes, the US could also quickly see millions of Mexicans filing for asylum based on gang violence. .

As a signatory to international agreements whose provisions form the basis of US asylum law, our Union is not prevented from expanding these provisions. However, if there is no reason other than to lend credence to President Biden's assertion that he is not trying to make laws, it should be Congress accepting his constitutional role and enacting that extension into law. And if Congress did, we, the people, could hold the legitimately empowered branch of the federal government accountable for the consequences at the southern border.