Janine Jackson interviewed the Center for Gender and Refugee Studies‘ Melissa Crow about the Biden administration’s asylum restrictions for the July 28, 2023, episode of CounterSpin. This is a lightly edited transcript.
CBS News (7/26/23)
Janine Jackson: A typical headline, this one from CBS News, reads, “Judge Rejects US Asylum Restrictions, Jeopardizing Biden Policy Aimed at Deterring Illegal Border Crossings.” So something is “jeopardized” that was aimed at “deterring” something “illegal.” CBS Morning News announced that a federal judge
blocked a new Biden administration policy aimed at reducing illegal crossings at the US/Mexico border. The policy took effect in May and it seemed to be working. In June, the number of crossings plummeted.
Whether the goal is “deterring” or “reducing” may shift your vision a bit of what a policy “working” entails, though the unexamined nature of the word “illegal” remains constant.
And CNN echoed many others in labeling the ruling, most importantly, a “major blow” to the Biden administration.
What does the ruling from a California Northern District Court say, and what lives—besides Biden’s political one—are at stake? We’re joined now by Melissa Crow, director of litigation at the Center for Gender and Refugee Studies. Welcome back to CounterSpin, Melissa Crow.
Melissa Crow: Thanks so much, Janine.
JJ: What policy is it that the district court judge ruled unlawful, and where did that policy come from?
MC: It is a rule promulgated by the Biden administration that is inaccurately termed “Circumvention of Lawful Pathways.” The rule essentially makes people ineligible for asylum if they transited through a third country on their way to the United States, unless they did one of three things: They applied for and were denied protection in a country of transit; unless they applied for and obtained parole under a certain DHS-designated program; or unless they obtained an appointment through the CBP One mobile app to present at a port of entry at a particular time.
There are some very narrow exceptions, but they generally don’t apply in practice.
US District Court Judge Jon S. Tigar
JJ: So District Court Judge [Jon] Tigar ruled that that was unlawful, and on what grounds did he make that ruling?
MC: On three separate grounds. First, the judge found that the rule is contrary to law, for pretty much the same reason that both the District Court and the Ninth Circuit Court of Appeals found that prior Trump-era restrictions that were very similar were also illegal.
The Immigration and Nationality Act provides that anyone who enters the United States, regardless of their immigration status and regardless of their manner of entry, should be able to apply for asylum. This rule flies in the face of that protection.
The second ground is that the rule is arbitrary and capricious. Essentially, Judge Tigar saw through the government’s smokescreen of all of these so-called lawful pathways, and he himself in the decision noted a number of situations where people wouldn’t be eligible for any of the alleged pathways that the rule supposedly provides.
And then the CBP One appointment requirement, it is just a condition that the Immigration and Nationality Act doesn’t include, and Congress never envisioned this kind of a barrier to applying for asylum in the US.
The third basis on which the judge found it to be illegal is that the government failed to comply with the required notice and comment procedures under the Administrative Procedure Act. They only provided 30 days for comment, as opposed to the usual 60 days.
And it’s a really complicated rule. I can vouch for the fact that many advocates didn’t sleep much during those 30 days, and certainly would’ve done an even more comprehensive job in commenting on the flaws in the rule if they’d had more time.
JJ: That’s very interesting. It’s almost as though it was kind of being pushed through.
CNN said, without elaboration, “Administration officials have rejected the comparison to Trump-era rules.” That’s true as a sentence; they have rejected those comparisons. But it sounds like, hmm, that doesn’t necessarily square with reality. There is a lot of similarity here.
MC: There is absolutely a lot of similarity. We’ve referred to it in the past as a mashup of the Trump-era entry ban and transit ban on asylum.
JJ: Let me just ask you, it sounds like you’ve answered it, but maybe just to tease it out: The phrase “illegal crossing” appears in every story. We’re trying to deter, we’re trying to reduce, we’re trying to curb “illegal crossings.” Is that a useful phrase?
Melissa Crow: “It doesn’t matter if you come in at a port of entry or between ports of entry, you are still entitled to apply for asylum in this country.”
MC: It is not a useful phrase. As I said, Section 1158 of the Immigration and Nationality Act provides a right to apply for asylum, regardless of an individual’s manner of entry. And that is why the initial Trump-era entry ban, and the entry ban implicit in this rule, are in violation of law. It doesn’t matter if you come in at a port of entry or between ports of entry, you are still entitled to apply for asylum in this country.
JJ: I wonder where Texas Republican Congressman Tony Gonzales got the factoid that he tossed off on Face the Nation, saying that, “Right now, nine out of ten people that come over illegally do not qualify for asylum.”
In context, he was saying that Texas troopers pushing children back into the Rio Grande is very terrible, but in general, attention there is sort of barking up the wrong tree, and we really ought to be talking about something else. But where does he get that nine out of ten number?
MC: I honestly don’t know where he gets that nine out of ten number. I’d be very curious to know. And I would emphasize that the asylum process is supposed to be based on case-by-case adjudication. So either an asylum office or an immigration judge would need to listen to the facts of the case of any of those children, or anyone else who’s seeking asylum in this country, before they can decide if the claim is meritorious.
JJ: Reporting evinces nowadays an implicit acceptance of the goal of border management, keeping things “under control,” keeping immigrants’ efforts to enter from “surging.” The way we’re to understand that the US is doing things right is if there are just fewer people trying to enter. It seems that a goal that we didn’t necessarily buy into is now implicitly in the background of everything we read and hear.
MC: That is not what the Immigration and Nationality Act says, and we seem to be prioritizing efficiency over the law, quite frankly.
JJ: You have suggested that instead of defending this policy, and it looks like the administration is going to appeal this ruling, the administration should instead be taking steps towards a fair and humane process. What would be some of the key elements of that fair and humane asylum process?
MC: It should of course be premised on case-by-case adjudication, as we just discussed, but it has to comply with the law. People have to be able to access the asylum process, regardless of manner of entry, regardless of status.
And one thing that I would note is that we know that the Department of Homeland Security can reallocate resources when they need to. We saw it in the family detention context—which was also illegal, I would argue. But we saw facilities where the government housed families pop up almost overnight.
We see it when they send more asylum officers to the border, or more immigration judges are assigned to hear border cases. Customs and Border Protection is one of the most well-resourced law enforcement agencies in the country. And if they want to process more asylum seekers at the border, they absolutely have the ability and the capacity to do that.
So I think a critical piece of good border policy has to be reallocation of resources in a way that enables them to comply with the law.
JJ: We’ve been speaking with Melissa Crow, director of litigation at the Center for Gender and Refugee Studies. Thank you so much, Melissa Crow, for joining us this week on CounterSpin.
MC: Thanks so much for your interest in these critical issues.
The post ‘People Have to Be Able to Access the Asylum Process, Regardless of Manner of Entry’ appeared first on FAIR.
This content originally appeared on FAIR and was authored by Janine Jackson.
Janine Jackson | Radio Free (2023-08-02T15:15:39+00:00) ‘People Have to Be Able to Access the Asylum Process, Regardless of Manner of Entry’ – CounterSpin interview with Melissa Crow on asylum restrictions. Retrieved from https://www.radiofree.org/2023/08/02/people-have-to-be-able-to-access-the-asylum-process-regardless-of-manner-of-entry-counterspin-interview-with-melissa-crow-on-asylum-restrictions/
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