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Voices & Opinion

POV: Biden’s Asylum Ban Is Legally, Morally, and Politically Wrong

“Not only is the president’s order unlikely to stop migrants from seeking protection, it’s also unlikely to be a successful election strategy,” says LAW’s Sarah Sherman-Stokes

Over the last year, students working in BU School of Law’s Immigrants’ Rights & Human Trafficking Clinic have won asylum for nearly a dozen immigrants from Belarus, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. Every single one of them was fleeing persecution, torture, or significant harm, and they entered the United States through the US-Mexico border, where they encountered immigration officials and exercised their legal right to request asylum. 

On June 4, President Biden effectively closed the southern border to asylum seekers like our clients. Had the border been closed just a few months earlier, many of our asylum-seeking clients would have been barred entry, and subsequently hurt or killed in their home countries. President Biden’s asylum ban at the border is not only legally and morally wrong, it’s also politically foolhardy.

The right to seek asylum in the United States is enshrined in section 208 of the Immigration and Nationality Act (INA), which states, unequivocally, that irrespective of immigration status any noncitizen “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)…may apply for asylum.” This includes our clients from all over the world, who arrive at, near, or in between, an official border crossing along the US-Mexico border. 

By law, these asylum seekers may request asylum, at which point they are typically processed and released pending a court hearing, or in other cases, detained and put through a credible fear interview. During this interview, they must demonstrate that there is a “significant possibility” that they could establish in a full hearing before an immigration judge that they have been persecuted or have a well-founded fear of persecution or harm on account of one of five enumerated grounds. If an asylum seeker can clear this hurdle, they are permitted to remain in the United States and present their case before an immigration judge.

President Biden’s June 4 “Proclamation on Securing the Border” changes all that. Instead of allowing asylum seekers to pursue their legal right to protection, President Biden’s order effectively closes the border to people and families fleeing persecution, torture, and harm. This Executive Order, the most restrictive of Biden’s immigration policies to date, bars asylum to anyone seeking it when the average number of daily border crossers reaches 2,500. Average daily border crossings have been greater than 2,500 since just after Biden took office in January 2021—which means the order is already in effect, and that is unlikely to change any time soon. Indeed, per this order, the ban can only be lifted when average daily crossings are at or below 1,500 per day between ports of entry, for two weeks. The last time the numbers were that low was July 2020—the height of the COVID-19 pandemic.

But of course, deterrence doesn’t work when you’re running for your life. Our clients in the Immigrants’ Rights & Human Trafficking Clinic were nearly killed by their abusive ex-partners, shot by homophobic mobs, and detained and tortured by repressive governments. They left their home countries, loving families, and close-knit communities because they had no choice. They realized that if they wanted to save their lives, and those of their children, they had to do whatever they could to make it to the United States. If the border had been closed to them, they would have very likely sought even more perilous routes to the United States, risking death along the way, or they would have been apprehended, and faced deportation into the hands of their persecutors.

So why is President Biden—the same president who campaigned on promises to restore dignity to the asylum process and protect those fleeing persecution—now moving to close the border to asylum seekers? The obvious answer, of course, is that he believes that moving further to the right will help him prevail against former President Trump in November. But not only is Biden’s order unlikely to stop migrants from seeking protection, it’s also unlikely to be a successful election strategy. The ACLU has already vowed to file suit, challenging this order, which rests on the same legal authority that President Trump relied on for his own ban; it was illegal then, and it’s illegal now. It’s fair to say that President Biden’s ban is very likely to be quickly tied up in court, enjoined from taking effect, or at the very least, significantly curtailed. But even if his ban was legally successful, it’s unlikely to sway voters. Sixty-eight percent of voters in seven key battleground states want a “balanced” approach to immigration—not the enforcement-only model currently championed by this administration.

The day before President Biden announced his new asylum ban, a client who we recently helped win asylum shared a photograph of her young daughter, “Sabrina,” celebrating her birthday at a park in Boston. Sabrina, who hopes to be a lawyer one day, wasn’t sure if she and her family would be able to stay here. I’m so glad they can, but we should all be worried about the Sabrinas, who, under this new ban, will never make it here in the first place.

Sarah Sherman-Stokes is a School of Law clinical associate professor of law and associate director of LAW’s Immigrants’ Rights & Human Trafficking Clinic. She can be reached at sstokes@bu.edu. 

“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact John O’Rourke at orourkej@bu.edu. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.