‘We’ve Been Here Before.’ Immigrant Advocates See Echoes of Trump in Biden’s Asylum Actions

Since President Joe Biden signed an executive action last week cracking down on asylum claims at the U.S.-Mexico border, immigrant rights groups and lawyers are drawing on a familiar playbook for how to respond.

“We’ve been here before in the Trump era,” says Lindsay Sara Toczylowski, executive director of Immigrant Defenders Law Center (ImmDef) in California. “We know that in the coming days we are going to see people who have been deported without due process. It will be a huge challenge legally because they will potentially have no appeals rights, but we will try to document what’s happened and do what we can.”

Biden’s policy halts asylum claims at the border once apprehensions reach 2,500 per day—a number that’s already exceeded. The usual asylum screening can restart once there is a daily average below 1,500 for seven days in a row, and an additional two weeks has passed. In addition to the asylum limit, the Biden Administration also directed that the minimum time asylum-seekers have to find consultation was reduced to four hours from 24 hours, a time frame that Toczylowski calls “laughably” short.

Keren Zwick, litigation director at the National Immigrant Justice Center, is already preparing for the fight against the executive actions in court alongside the ACLU. The ACLU released a memo on June 4, soon after Biden signed the executive action, outlining their intent to challenge the order in court and stating, “It was illegal when Trump did it, and it is no less illegal now.”

Throughout 2018 and 2019, former President Donald Trump attempted to change asylum rules through multiple policy changes, including the "Remain in Mexico" policy, and an asylum ban on those who passed through another country before reaching the U.S. In response to the asylum ban, The ACLU filed suit, arguing that the Trump Administration had violated the rules set in place by Congress on establishing a “safe third country,” which is an agreement established with the Immigration and Nationality Act which allows another country to process asylum claims instead of the U.S. In July 2020, a federal judge in Washington, D.C. blocked Trump’s asylum ban. Biden also took steps to end Trump’s “Remain in Mexico” policy when he took office.

Zwick says that the real challenge is going to be finding plaintiffs for their lawsuit, which means finding people directly harmed by the rule. That’s going to be particularly difficult if those directly harmed by Biden’s executive action are swiftly deported from the United States with the shortened consultation period of four hours. She and her team are potentially going to have to search for people who have already been deported, traveling to their country of origin. “During the Trump Administration, we did have to go to Guatemala, so this isn't a new problem for us,” Zwick said. “It's just new that it's a Biden-related problem.” Trump’s rule was blocked by the courts in 2021. 

The Biden Administration argues that the latest actions are necessary to streamline a backlogged system and pushes back against comparisons to Trump’s policies. “The Trump Administration attacked almost every facet of the immigration system and did so in a shameful and inhumane way,” a senior Administration official said on June 4. “The actions that we are taking today will only apply during times of high encounters,” the official noted, adding that there are exceptions to the rule that differentiate it from those put forth by the Trump administration. “The action will not ban people based on their religion.  It will not separate kids from their mothers.”

Both in the U.S. and in shelters in Tijuana, ImmDef provides “Know Your Rights'' presentations that help migrants understand what is expected of them by border officials, including what will happen in credible fear interviews. When asylum-seekers enter the United States, they are referred to U.S. border officials who conduct a credible fear interview (CFI), in which the official determines whether the migrant seeking asylum has a “credible fear” of returning to their home country.  Toczylowski says ImmDef is redoing its “Know Your Rights” presentations in light of the new actions and rethinking its strategies, keeping in mind LGBTQ migrants, indigenous language speakers, and those who they see as most vulnerable after this new policy.

Even with Biden’s action, people who legitimately fear being tortured or persecuted in their home country can still seek protection in the United States and will be screened by U.S. asylum officers, but with more scrutiny than before. If that screening is passed, they can pursue limited forms of humanitarian protection. The executive action outlines specific exceptions to the asylum rule for humanitarian reasons, specifically unaccompanied children and victims of a severe form of trafficking.

Still, Jennifer Babaie, director of advocacy and legal services at Las Americas Immigrant Advocacy Center, which provides free and low-cost legal services to migrants and refugees in West Texas, New Mexico and Ciudad Juarez, Mexico, says she believes the rule will not change how many people are attempting to cross the border; it will only hinder their ability to receive help. “The new rule is punitive in that legally, it's taking away asylum and just access to that kind of relief for the majority of individuals, but it's not doing anything to stem or block people from walking up to the port of entry,” Babaie says. “It's just increasing the penalty for even being brave enough to do that and requesting asylum.” 

Toczylowski of ImmDef agrees, and believes that these deterrence policies are not realistic, since those seeking asylum are not fleeing their home countries because of, or in spite of, U.S. policies, but for their safety and survival 

Toczylowski says this feels like a “betrayal” from what she and other immigration rights lawyers and activists were told on Biden’s campaign trail.  Babaie agrees, noting how often Las Americas has sat down with government agencies to relay “on-the-ground” needs from group on the border, asking the Administration to focus on “human-centered” solutions. 

“It’s not a lack of information, it’s a willful choice,” Babaie said. “I think it’s a disservice to the public that they’re being told this was necessary.”