By Allegra Love
I listened to President Joe Biden announce his new plan for the U.S. border on Jan. 5 with fury.
A theme in his speech — to crack down on people who cross the U.S. border illegally and circumvent U.S. law — makes my blood boil.
Crossing the U.S. border to ask for asylum is emphatically not illegal. The president wants you to believe it is, while not noticing the fact that he has nearly eradicated the right to asylum at the border. With Biden’s latest plan, the right is contingent on nationality. And it doesn’t exist in the form that is legally required.
Folks talk about breaking the law all the time, but let’s look at the actual text of 8 U.S. Code § 1158, which describes the general authority to apply for asylum:
“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 and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”
Pay close attention to the parentheses in that statute.
It says a person “who is physically present in the United States … whether or not at a designated port of arrival” may apply for asylum. This means that people who cross the border without permission for the express purpose of asking for asylum have done so in accordance with U.S. law.
Importantly, Title 42 has closed the ports of entry for nearly three years, and the only way to assert an asylum claim is to cross the border between ports.
This fact of asylum law is absent in any White House discussion about the U.S. border, and in the media coverage that follows.
When the president announced in November that Venezuelans could no longer ask for asylum if they crossed the border between ports of entry and then announced the same restriction on Thursday for Cuban, Haitians and Nicaraguans, he overrode U.S. asylum law as established by Congress in 1980.
So while the word “illegal” has no place in describing asylum seekers coming to the U.S. border, it is our own president who is breaking the law.
To make matters worse, the White House also invented a new policy and arbitrarily decided it is the only acceptable legal way for people from certain nationalities to come to the United States.
As a trade-off to ending asylum, the government will create an opportunity for up to 30,000 people a month from Haiti, Nicaragua, and Cuba to petition for humanitarian parole into the country.
On its face, that program is good.
We need more opportunities for people to apply for entry into the United States from their home country. But this program is not an appropriate replacement for the right to seek asylum. We should not believe the president when he makes the suggestion.
To start, the program is quite limited in number. Not everyone will be able to apply for it. Also those that wish to qualify need a financial sponsor in the United States. Furthermore, you have to apply for the program from your country, and if you leave, you are disqualified. All of these requirements make this program a terrible substitution for the right to asylum.
I have represented more people than I can count in their asylum cases. One constant factor in their stories is that they had to move. Most of my clients love their homes and imagined a future there until there wasn’t one.
While every story is different, very few folks had the opportunity to wait and fill out an application or identify a sponsor in the U.S. to help them.
They had no other choice.
The right to leave a place where your life is in danger is at the very core of our global covenants to refugee rights. This is why we have asylum law in this country in the first place.
President Biden deciding that the only way to ask for help is to stay put is an assault on the entire concept of the refugee.
He said he has a message for anyone leaving Cuba, Nicaragua or Haiti “do not just show up at the border. Stay where you are and apply legally from there.”
Just showing up at the border is the whole point of asylum.
It is sanctioned, and it is the actual process outlined under both international and domestic law. A person may not be eligible for Biden’s made-up parole program but should be eligible to ask for asylum. The administration’s decision that Venezuelans, Cubans, Haitians and Nicaraguans are simply not eligible to benefit from those international and domestic rights is unlawful.
It must be called what it is.
President Biden is a villain on the border.
I am tired of hearing his policies attributed to Trump in the media.
They are Biden’s policies, and he is finding new and more ghoulish ways to violate migrants rights on the U.S. border than his predecessor ever managed.
Biden ended asylum in the U.S. for four nationalities, and there is absolutely no reason to believe he will not expand that to include other nationalities the moment they become politically inconvenient.
It’s time to treat this president as the same level of threat that Trump was to the rights of migrants across the globe.
Allegra Love is an immigration attorney from Santa Fe, N.M. She is a graduate of Dartmouth College and the University of New Mexico School of Law. She is the founder of and former director of Santa Fe Dreamers Project, a legal services organization serving immigrants and refugees. She also worked at the El Paso Immigration Collaborative to represent detained asylum seekers in the Southwest.
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WashingtionIsFailingUs says
Enforceable immigration policies are much more than a Biden problem. They were a Trump problem. Before that they were an Obama and a Bush problem years earlier. This is a US government problem. The US doesn’t have a stated, reasonable, and enforceable immigration policy that deals with the realities of what’s happening daily at the US southern border. Our elected politicians simply blame either the President or the people seeking to immigrate themselves.
Rather than casting this as a Presidential problem American voters should be asking every single official elected to Congress to stop all the useless bickering and endless, toothless investigations and start AND COMPLETE work on real immigration policies.
Edith Campins says
Well said.
Dennis C Rathsam says
Trump was never a villian… Only in the eyes russian collusion denocrats, who at every turn inhibited Trump . Everyone knows the wall worked except Crackhead-daddy!. Now are country is overhelemed by invaderes, fentenoyl, terrorests, & sex trafficers. Trump kept us safe, no inflation, we all made money til the Chinezze flu hit, & everything went in the toilet. Remember folks Trump was reponsible for the Wrap speed production of the vaccine… And lets not forget about all the lifes Trump saved world wide with Americas production of ventalators! Hate him if you wish, but I know you were better off 4 years ago, your 401 K tells you everyday.Now as our country wollows in despare, Americans are suffering…The invaders are treated better than our own veterans,& homeless. The scum we protect thanks to Biden throw the food we give them in the trash, buying drugs & booze with the money Biden gives them…. Wake up America….at this rate, there might not be an America to wake up too!
Calm Down says
Nope. Doing better now than I ever was during the Trump years. Biden-Employment gains (lowest unemployment in history, more people working in history, jobs coming back to America, etc.) but keep crying about eggs (bird flu ravaging flocks) or your 401k which HELLO welcome to capitalism (always been here, maybe it was never wise to tie money up in a market that fluctuates). Pick up a book and find out how the world works and turn off Faux News. You sound like a fascist.
Trump is a corrupt, Epstein-Plane flying, rapist con man that used quid-pro-quo like most of us use toilet paper. He was trash. A grifter. Someone that wrote off his hooker hush money on his taxes, yet I pay more taxes than he does. He’s a man that has only ever failed in life yet claims he’s successful. He completely grifted taxpayers while POTUS (the only time in history he has ever made money). His children received financial deals while he was POTUS. Jared received over a billion from the Saudi’s, and it doesn’t take much to figure out why.
In all your ranting, you have made it clear why the Republican Party can say whatever it wants and you fall into it and lap it up like a cat does its milk. You have no sense of reality. You think being kind, polite and having tolerance is being woke, yet your generation is the one that taught mine to treat others as you want to be treated. So with that said, you probably say the “N” word, call LGBTQ all sorts of names, and you think all women should do is pop out babies while you mooch off the government to supplement your income. I mean, we are generalizing here right? That’s what you GQP do all the time, and I think it’s time the gloves come off. I’m not a kind liberal. I think we should sling mud and expose the GQP for what it is – a hatful, fascist organization that attempted to overthrow the government in a coup, and wants to ban books and people for being different, because in your world, the only right is a cis-gender straight white Christian and you have no loyalty to America or the constitution. You are why Russia and China will never have to fire a shot to being this country down. Fools like you are doing the work of communists and fascists. Newsflash – there are more of us then there are of you, so make it easy and move to Russia, China, Saudi Arabia, Qatar, or North Korea if you like their ways so much and leave freedom, peace and prosperity here for the rest of us true patriots, you faux-American.
Tired of it says
What a lie and hate filed comment. Proof again that facts don’t matter to trump supporters. What did trump actually do to fix the immigration problem? Nothing. A lot f insulting and demeaning rethoric but no actuaal solution. If he had “fixed” the problem we wouldn’t be facing it now. What is the Republican solution to the problem? Do they have one? No, they are too busy seeking revenge to actually govern. What have they proposed to deal with inflation? Nothing, just endless criticism.
Jeff says
Biden will become the confidential document villain as well. It’s crazy that whatever democrats accuse the republicans of doing they’re doing.
But this is more about the democrats using this to purge Biden from running in 2024. They’re done with him and they’re doing to him what the did to Trump and other republicans.
Disgusting.
Calm Down says
Oh please. They were clearly planted so Trump could say, “See, they all do it.” And he will get off.
Although, to your point…it’s sort of like with Republicans always calling someone a pedo or groomer and then the next day 10 Republicans are arrested for actual pedophilia, rape, and sexual assault. Funny that, huh. The party that screams the most about helping children is the one that hurts it the most.
John Yankovich says
B as in B, S as in S! She leaves out the other half of the equation! That asylum seekers are detained until they can appear before an immigration judge to determine the validity of there claim (at tax payer expense).
In NYC illegals are put in $200 to $500 a night hotels, Trash them and complain about the food! All at taxpayer expense! We have homeless veterans who don’t get this kind of help! Let’s talk about the misplaced compassion, the vast majority of illegals come here to mine the gold not to claim political asylum! One man’s point of view!
Bob Fortier says
And not all who attempt to get into America are illegals or losers…though they are many times painted as such. Most of our enemies where born here.
Pogo says
@Bob Forrtier
Amen. And some of our bravest defenders were born there:
#VeteranOfTheDay Army Veteran Alfred Rascon – VA News
https://news.va.gov/114650/veteranoftheday-army-alfred-rascon/
Laurel says
First of all, I am for immigration as it’s what this country is based on. We are the world’s melting pot, to our advantage. We do need the workers to do what we do not want to do. I do have a problem with the border situation though, and I’m not as sympathetic as the author.
Look at Ukraine. Those people are fighting for their country, they are not fleeing it. It cannot get much worse for Ukraine. Russia has destroyed many cities; they have turned lovely cities into rubble. They have demolished power plants, leaving the Ukrainians literally in the cold. The Russians have demolished farms and wheat supplies, leaving the Ukrainians without food, and money from exports but Ukrainians still stand their ground and fight. The Russians are using fear and death with mass graves to scare and starve the Ukrainians. Ukrainian citizens have been killed and tortured, en mass, by the Russians, yet they dig in and are more determined to hang onto their country’s democracy and borders. If Americans were in such situations that life became intolerable, or attacked, they, too, would not put up with it and would fight back.
So, why do people in South and Central America, and Haiti not fight for their countries? Why should we take on and pay for the world when their homes are dangerous? What are they doing about it besides relying on us? I’m not seeing it.
I am not convinced that these refugees cannot stand up and fight for their countries. They come here to resolve poverty while over burdening the American middle class (which nowadays is straining financially) claiming they need sanctuary from drug dealers and cartels. If we, and Europe, can help the Ukrainians in their homeland, we, and the Europeans, and United Nations, NATO, etc., can help them on their own land. We can use sanctions and global pressure on their leaders there as well. After all, they say they love their countries.
This is an ongoing, unreasonable situation that has not be properly addressed in decades. Not one President has had a successful plan. Not one.