Washington, D.C. (June 5, 2024) – Yesterday, the Biden administration rolled out its “Proclamation on Securing the Border”, complete with a “Fact Sheet” and DHS explainer, plus a 194-page Federal Register notice with the implementing rule. Center for Immigration Studies Fellow in Law and Policy Andrew Arthur offers a first look into what the proclamation entails – and explains why he is not optimistic the policy will be effective at taming the chaos at our southern border.
 
“If the Biden administration is going to take a page from the Trump border playbook, it should have chosen the Remain in Mexico program, which DHS itself called ‘an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system’ and which has already been blessed—albeit preliminarily—by the Supreme Court,” said Arthur.
 
Arthur continues, “Instead, they are repackaging a policy that has been enjoined in a Ninth Circuit order the Biden administration opted not to appeal further. The Biden plan is doomed to failure unless his DOJ shows a willingness to fight legal challenges from immigrants’ advocates that it has not demonstrated up to this point.”
 
KEY TAKEAWAYS:

• Migrants have been pouring over the Southwest border illegally for the past three years because they know they’ll be released to live and work in the United States as “asylum seekers”.
• The Biden proclamation and its implementing rule would address such abuses by barring illegal entrants from making asylum claims whenever the seven-day average of Border Patrol apprehensions at the Southern and Southwest borders reaches 2,500 per day.
• This proclamation and rule are like, but less effective than, similar actions taken under the Trump administration in November 2018. Those actions were enjoined by the Ninth Circuit in a case the Biden administration has thus far refused to take to the Supreme Court.
• The Biden proclamation limitations and its asylum bar include numerous exceptions and loopholes that will significantly curb—if not negate-- their effectiveness.
• Moreover, even migrants barred from asylum will be allowed to seek two other forms of protection, “statutory withholding” and protection under the Convention Against Torture (CAT).
• If Biden’s DHS continues to release illegal entrants who pass preliminary USCIS screenings for those humanitarian protections, the proclamation and rule will do little to stem the border crisis.
• The proclamation and rule are likely to face legal challenges in district and circuit court. The ultimate success of these proposals will depend on the willingness of Biden’s DOJ to litigate such challenges vigorously, but its track record is not good.

Arthur’s full reaction to the Biden administration’s proclamation can be found here.