Biden's New Proclamation on Securing the Border

Symbolism or Substance?

On June 5, 2024, President Joe Biden signed a proclamation titled "A Proclamation on Securing the Border," aimed at managing migration challenges at the U.S. southern border. This executive order builds upon existing regulations and introduces new measures to handle high levels of migration. The proclamation emphasizes lawful pathways for entry, imposes entry suspensions during periods of high migration, and outlines specific exemptions, but it’s efficacy is highly suspect and will likely draw a rapid court challenge.

The Proclamation Explained

The new rule primarily suspends and limits the entry of non-citizens across the southern border during periods of high border crossings. It complements the "Circumvention of Lawful Pathways" rule issued in May 2023, which encourages lawful immigration processes and imposes a rebuttable presumption of asylum ineligibility on those who do not use these pathways. The purported goal is to manage migration more effectively by setting thresholds for applying or lifting the suspension based on daily encounters at the border.

Notable Changes

1. Expanded Use of Lawful Pathways:

• Establishment of Safe Mobility Offices in Colombia, Costa Rica, Ecuador, and Guatemala to facilitate access to lawful pathways.

• Expansion of country-specific parole processes¹ for urgent humanitarian reasons or significant public benefit.

• Increased access to visa programs for seasonal employment.

• Use of the CBP One mobile application to schedule orderly entries at ports of entry.

2. Suspension of Border Crossings at 2,5000 and Monitoring Mechanism:

• The rule introduces a mechanism for monitoring daily encounters at the border. The suspension of entry can be lifted if the seven-day average of encounters falls below 1,500 and reinstated if it rises above 2,500.

Reflecting Existing Rules

The changes in the new rule reflect measures already in place since May 2023, such as the use of the CBP One app for scheduling border entries and the expansion of parole processes. These measures were designed to reduce irregular migration and manage border crossings by providing structured and legal avenues for migrants.

Exemptions

The proclamation outlines several exemptions from the suspension and limitation on entry:

1. Unaccompanied Minors:

• Exemption for unaccompanied children as defined by U.S. law.

2. Victims of Severe Trafficking:

• Exemption for victims of severe trafficking as defined in section 7102(16) of title 22, United States Code.

3. Parole or Authorized Entry:

• Exemption for individuals authorized to travel under a DHS-approved parole process.

4. Humanitarian and Public Safety Considerations:

• Entry may be permitted based on significant law enforcement, officer and public safety, urgent humanitarian, and public health interests.

5. DHS Waiver:

• Entry may be permitted due to considerations at the time of entry or encounter, as determined by the Secretary of Homeland Security.

Challenges with the Law

1. Conflicts with Title 8, Section 1182:

• Executive orders cannot override federal law, raising questions about the legal standing of the proclamation in cases where it might conflict with existing statutes. Title 8, Section 1182 of the U.S. Code governs inadmissibility to the United States, and any executive action must align with these statutory requirements².

2. International Treaties:

• The proclamation's approach may conflict with international obligations under treaties like the 1951 Refugee Convention³ and the 1967 Protocol⁴, which emphasize the right to seek asylum without penalization for illegal entry.

Comparison with Trump v. Hawaii

The case of Trump v. Hawaii⁵, which upheld the travel ban imposed by the Trump administration, differs significantly from the current situation. Trump v. Hawaii primarily involved national security concerns and specific countries identified as threats. In contrast, Biden's proclamation focuses on managing migration through legal pathways and addressing humanitarian concerns (Trump v. Hawaii, 138 S. Ct. 2392, 2018).

Legal challenges to Biden's proclamation are likely to focus on its alignment with existing immigration laws and international obligations rather than national security.

Open Questions and Concerns About the Order

1. Focus on the Southern Border Only:

• The proclamation specifically targets the southern border, leaving other U.S. borders and entry points unaffected. This focus may lead to uneven enforcement and shifting migration patterns.

2. Defensive Asylum Claims:

• The order does not address defensive asylum claims, including withholding of removal⁶ or protection under the Convention Against Torture (CAT)⁷. These claims are typically raised during removal proceedings and involve different legal standards and processes. This means that an individual who crosses the border between ports of entry may have a pathway to a defensive asylum claim, while an individual who attemps to apply at a port of entry would be denied the opportunity to make a claim.

3. Handling Return of Asylum Seekers:

• The order does not provide clear guidelines on what happens if the U.S. cannot return an asylum seeker to their home country due to safety or diplomatic reasons. The United States is a signatory to the 1967 Protocol Relating to the Status of Refugees, which incorporates the 1951 Refugee Convention. Under Article 33 of the Refugee Convention, the U.S. is obligated not to return ("refouler") a refugee to a country where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.
  The principle of non-refoulement is also reinforced by the Convention Against Torture (CAT), which prohibits returning individuals to a country where they would likely face torture.

Practical Issues

The rule's requirement to maintain daily encounters below 1,500 to lift the suspension presents practical challenges. President Biden's order stipulates that once border encounters average 2,500 daily over a 7-day period, border entries will be shut down until the number is reduced to 1,500. This strategy defies logic, as migrants will continue to wait and attempt to enter.

Damming up a river doesn't stop the water from flowing.

Legal Challenges Ahead

Given its significant implications and potential conflicts with federal and international laws, the new proclamation is certain to face prompt legal challenges. Advocacy groups and legal experts are likely to contest the rule's legality, arguing that it exceeds executive authority and undermines established asylum protections.

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Given the constraints imposed by the separation of powers, President Biden's ability to enact broad, sweeping changes to U.S. immigration laws through executive action is extremely limited. This proclamation is a clear strategic political maneuver, not a serious attempt at comprehensive immigration reform.

The implementation and execution of the executive order face substantial hurdles, including potential conflicts with existing federal laws and international treaty obligations, as well as operational inefficiencies at the border.

These challenges underscore that significant and effective reform can only be achieved through legislative action by Congress, which has thus far failed to address the immigration crisis.

1. Parole in U.S. immigration allows certain individuals temporary entry or stay without formal admission for urgent humanitarian reasons or significant public benefit. It does not confer legal immigration status but may enable eligibility for other immigration benefits (INA § 212(d)(5)(A)).

2. Title 8, Section 1182 of the U.S. Code outlines the classes of noncitizens who are inadmissible to the United States, including those with communicable diseases, criminal backgrounds, security risks, and other grounds of inadmissibility. This section also provides for certain waivers and exceptions under specific conditions (8 U.S.C. § 1182).

3. The 1951 Refugee Convention defines the term "refugee" and outlines the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. It is a key legal document in international refugee law, ratified by numerous countries, including obligations to protect refugees without discrimination.

4. The 1967 Protocol Relating to the Status of Refugees expands the 1951 Refugee Convention by removing temporal and geographical limitations, thereby applying its protections universally. Signatory states are obligated to extend the Convention's protections, including non-refoulement and non-discrimination, to all refugees covered by the Protocol (1967 Protocol Relating to the Status of Refugees).

5. Trump v. Hawaii, 138 S. Ct. 2392 (2018), was a U.S. Supreme Court case that upheld Presidential Proclamation 9645, which restricted entry into the United States for individuals from several predominantly Muslim countries. The Court emphasized the President's broad authority under the Immigration and Nationality Act to suspend entry of noncitizens for national security reasons when it was deemed in the national interest.

6. A defensive asylum claim can be used as a basis for withholding of removal under U.S. immigration law. Withholding of removal prevents the deportation of individuals to a country where their life or freedom would be threatened due to race, religion, nationality, membership in a particular social group, or political opinion. This protection is mandatory if the individual meets the criteria, offering a higher threshold of proof than asylum but not providing a path to permanent residence (8 U.S.C. § 1231(b)(3)).

7. Under the Convention Against Torture (CAT), the United States is obligated not to return individuals to a country where they would likely face torture. This obligation is implemented through regulations that allow individuals to apply for protection under CAT during removal proceedings. If granted, CAT protection prevents deportation but does not provide lawful permanent resident status or other immigration benefits (8 C.F.R. §§ 208.16-18).