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“Unraveling Asylum: Decoding the Potential Changes and Their Impact on Migrants

Sunday saw the arrival of undocumented immigrants in McAllen, Texas, following their processing and release by Customs and Border Protection. Photo credit: Tamir Kalifa for The New York Times

An asylum attorney explains the border limitations that Congress is debating.

Senators are still unable to agree on immigration laws, which might affect President Joe Biden’s request for funds for Taiwan, Israel, and Ukraine. Though the White House is pressuring senators to go forward, a compromise feels progressively more out of grasp despite the negotiators’ plans to continue in contact into the weekend.

Republicans’ #1 objective is to restrict the asylum system. Ava Benach, a 25-year immigration attorney, was contacted by West Wing Playbook to explain the true implications of the proposed policies for immigrants. The duration of this chat has been trimmed.

What impact may all of this have on asylum seekers?

It’s evident that they want to make it more difficult to be granted refuge. One is to make it more difficult for immigrants to pass the initial screening process for asylum eligibility by altering the “credible fear” threshold.

Restricting the government’s power to “parole” individuals—a process that permits the immigration of people who would otherwise be ineligible—is reportedly the second step.

Thirdly, they are attempting to reinsert some teeth into the Safe Third Country accords that the Trump administration signed, requiring immigrants to provide proof that they first applied for asylum outside of the country before traveling to the US.

How do those genuine terror interviews go?

These are carried out somewhat soon after admission. People have been traveling over hazardous areas for days, weeks, or months in order to reach the United States. They are scared, bewildered, and worn out. Additionally, individuals must describe their most horrific life events to someone via a translator via a video screen, typically without the aid of legal counsel. Raising the bar will mean fewer individuals will be able to pass it and be granted the chance to submit an asylum claim.

The courts invalidated the Safe Third Country Agreements implemented by the Trump administration, and Biden’s “transit ban” has also encountered legal challenges. The legal system may really be altered by Congress.

Lawsuits concerning immigration law nearly invariably center on the executive branch’s actions and interpretations of the law. Therefore, it becomes a far more legally sound policy if Congress enacts it into law. Regarding immigration, Congress is considered to have plenary power, which allows it to do almost anything as long as it is not obviously discriminatory or unlawful.

Many are also worried about the parole component; last week, I spoke with a former administration official who told me that Biden would lose the main component of his border control plan if he did not have this authority.

For many years, the immigration authorities have used parole as a practical tool to deal with emergencies and individuals who are in danger.

Thanks to parole, the government may examine these people and decide whether to keep them in detention or allow them to enter the country and live in the community.

You’ve voiced criticism of the policies under discussion. Though no one is genuinely working on a comprehensive reform of the immigration system, would you feel differently about the proposed measures in a different world if that were the case?

Limiting the ability to parole people into the United States makes sense where there is an effective and reasonable visa system, as long as we’re dreaming. If you’re talking about more immigrant visas, fewer backlogs, and an immigration system that responds to the needs of American families and businesses, then sure.

What do you believe the participants in this argument are missing?

There is a mistaken idea, in my opinion, that they can stop people from escaping hazardous, violent, and dismal conditions by making them appear at the border. And that the possibility of being imprisoned or not having legal status may dissuade them.

I think the knee-jerk reaction is to assume that adding more brutality and harshness would fix the issue. But in situations where your children’s lives are in jeopardy and leaving your house is perilous, individuals may resort to drastic methods, even if they have unintended effects.

Since I began practicing 25 years ago, I have maintained that the absence of options for legal movement is the primary driver of illegal migration.


On Tuesday, the Departments of Justice and Homeland Security unveiled a proposed rule that would prevent some migrants from requesting asylum in the United States if they enter the country illegally or neglect to ask for safe harbor in another nation first. President Joe Biden gave a preview of the regulation in January. According to a senior government official who briefed the media, it will be implemented with the conclusion of the COVID public health emergency on May 11th, after a 30-day public comment period.

The White House’s most severe border control action to date, the new plan, is what immigration activists regard as the “transit ban” or “asylum ban” and will effectively be its policy response to the long-awaited repeal of Title 42. Shortly after it was posted, Democrats and proponents of immigration received a barrage of criticism directed at the Biden administration, accusing officials of continuing the Trumpian strategy of border politics, which Biden had vowed to abandon during the campaign. Lawsuit threats also started to circulate.

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