The policy introduces three key changes when illegal crossings exceed 2,500 per day
The American Bar Association (ABA) opposed President Joe Biden’s recent executive order that restricts asylum eligibility for migrants crossing the southern border illegally during peak periods.
ABA President Mary Smith strongly opposed the executive order, stating it “effectively seals the southern border” when illegal crossings exceed an average of 2,500 over seven days.
The American Civil Liberties Union (ACLU) also recently announced its intention to challenge the policy in court. “This executive order was illegal when [former President Donald] Trump did it, and it is no less illegal now,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.
The new policy complicates the process for migrants who enter the U.S. illegally during peak periods to be referred for a “credible fear” screening with an asylum officer. This makes it harder for them to prove their entitlement to remain in the country due to fears of persecution or torture.
The Biden administration argued that its policy differs from Trump’s because it only applies when illegal crossings are high and includes more exemptions for humanitarian concerns. Biden criticized Congress in a proclamation for not passing bipartisan legislation to fund immigration enforcement and streamline the asylum process. He highlighted that the immigration system is “broken” and that the government’s capacity at the border is “severely strained.”
The asylum restrictions are outlined in an interim final rule from the U.S. Department of Justice and the Department of Homeland Security (DHS). The restrictions apply when illegal border crossings exceed an average of 2,500 per day over a week and are lifted when the seven-day average falls below 1,500 for two consecutive weeks.
The executive order applies to people who cross the border illegally. It does not apply to those seeking lawful entry or those using the CBP One mobile app at a port of entry, which allows only 1,400 appointments daily, resulting in long waits for asylum-seekers.
The policy introduces three key changes when illegal crossings exceed 2,500 per day, as detailed in a DHS fact sheet. First, individuals entering illegally will generally be ineligible for asylum except under “exceptionally compelling circumstances.” Second, they will not be referred for a credible fear screening unless they proactively express fear of returning to their countries. Third, those expressing fear but not meeting asylum criteria under the new rule must meet a higher standard to avoid removal.
Exemptions to the new rule include lawful permanent residents, unaccompanied children, severe trafficking victims, those with acute medical emergencies, and individuals with valid visas or permission to enter the U.S. Those failing to meet the new asylum standards will be swiftly removed and barred from re-entry for five years.
In a statement, Smith emphasized that the policy “violates critical provisions of the Immigration and Nationality Act, international law, and due process,” endangering vulnerable individuals and families. She called for comprehensive immigration reform legislation and urged the administration to abandon the order in favour of fair and humane immigration and asylum policies.
