The power of the President to bar asylum seekers is very limited

The Biden administration issued today a policy to reduce migration across the Mexican – U.S. border. The new policy will be challenged as Trump’s similar policy was challenged, successfully.

Based on media reports, the executive order would shut down the border when border crossings – by which it is meant the great wave of crossings outside of the formal ports on entry by people seeking asylum – exceed a threshold number.

The key issue of law is to what extent can an Administration constrain the flow of asylum seekers without Congressional concurrence.

This Congressional Research Service report states (in summary) the legal issue this way:

First, Congress sets the basic rules of the asylum system.

Second, federal enacted in 1965 and not modified since protects virtually all asylum seekers, however they get onto American soil.

The 1965 Immigration and Nationalization Act (INA), Section208(a)(1) states that “any alien who is physically present in the United States, or who arrived in the United States (whether or not as a designated port of arrival…. irrespective of such the alien status, may apply for asylum in accordance with this section.” Also, Section 235(b)(1)(A)(ii) requires that an alien apprehended near the border who states an intent to apply for asylum must be seen by an asylum office.

The 9th District added more force to these provisions protecting all aliens by referring to the 1951 United Nations Refugee Convention, to which the United States is a signatory. This protocol clearly states that the legal status of an asylum seeker shall not affect the right to seek asylum.  The District Court wrote that this 1951 document served as an “interpretative” guide to Congress when it drafted the 1965 act.

During the Trump administration, and now with Biden, the courts will decide if these 1965 provisions can be overridden by two broad INA authorizations of the president (Section 212f) or the attorney general (Section 208(B)(2)(c).




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