Biden’s New Border Policy and the Rights of Asylum Seekers

Illegal immigration is shaping up to be a major issue in the 2024 election. 48% of people say they care about it a “great deal” according to a recent Gallup poll. It is, however, far from clear how to address the issue or to even identify what the issue specifically is. A planned bipartisan immigration deal was scuttled earlier this year when Republicans withdrew support following Trump’s attack on the proposed legislation. If successful, it would have been the first major congressional action on immigration since Ronald Reagan was in the White House. Following this failure, and with immigration still forefront in the minds of many American voters, on Wednesday, June 5th, President Biden implemented a controversial executive order, which placed restrictions on the asylum process.

Asylum seekers make up only a fraction of total immigrants, but there are currently over a million asylum applicants on the U.S. waitlist – a few 10,000 are approved every year. These asylum seekers request refuge in the United States to avoid (potential) persecution on the basis of things like race, religion, or political affiliation. Because of these additional considerations, the asylum process raises a unique set of ethical questions. While immigration, generally, is discussed in consequentialist terms — comparing the harms and benefits of different immigration policies — asylum suggests a fixed, uncompromising duty to rescue those in need.

Where might this obligation come from? One line of arguments involves human rights or internationally guaranteed rights. If we accept that humans, either by their nature or by their membership in a global community, are owed certain protections and powers unjustly denied them in their country, then other nations may be on the hook for ensuring their delivery. Just as we typically believe that a passerby has an obligation to assist an injured stranger, we might similarly assert that well-positioned nations are similarly obligated. Countries owe refuge to those that arrive at their doorstep fleeing persecution.

But which country is responsible for making up this deficit? Skeptics are quick to point out that just because someone is owed these goods somewhere, does not mean they are owed asylum in whichever country they choose. And indeed, the United States has increasingly refused entry to asylum seekers who have traveled through a safe country to get there. But surely it cannot be that every state is permitted to pass the buck, or else asylum seekers might forever be denied what they are owed. Is there a way to resolve this tension?

Like the Trump administration before it, the Biden administration has been placing restrictions on just who can apply for asylum, due to both spiking asylum claims amid political violence in Central America as well as fears of immigrants abusing the asylum system. June 5th’s executive order allows for the suspension of asylum claims at border regions outside of ports of entry as long as the threshold number (2,500 of average immigration stops per day) is reached. As average daily immigration stops are almost always above this number, the executive order nearly functions as a de facto ban on asylum claims outside of ports of entry. (A port of entry is a designated lawful entry point into the country staffed by customs and border patrol personnel, such as an airport.) This dovetails with other Biden administration policies to mitigate asylum seeking and to steer immigrants towards lawful ports of entry.

But as ethicists we should ask: does this shift in policy interfere with the rights of asylum seekers? A possible reply is that, like any good Samaritan, the United States should not be expected to help if there is an extensive risk to itself. However, evidence indicates that at least the long-term economic impact of refugees and asylum seekers is positive. This does not deny the possibility of other kinds of harms or more local economic harms, but especially given the small number of asylum seekers compared to the population of the United States, contending they pose an extensive risk is dubious.

Another thought is that asylum seekers should simply enter at a port of entry instead of illegally across the border to ensure the protection of their rights. The adequacy of this response will depend on the effective function of legal ports of entry. Additionally, almost by definition, asylum seekers will have some of the least control over the circumstances of their entry and their ability to navigate the U.S. immigration system. If we are serious about granting asylum to those fleeing persecution, then there needs to be a relatively low barrier to enter the system to ensure it does not miss people with the greatest need. To be clear though, exploitation of the system need not follow from this fact. An effective well-staffed asylum system could quickly and rigorously make determinations about asylum status even if applying for asylum is made easier.

The alternative is difficult to stomach; stripping the opportunity of asylum for someone who had to flee their country is a devastating punishment. Is the erosion of asylum seekers’ rights an acceptable byproduct of an illegal immigration crackdown? If we accept the rights of asylum seekers as something foundational – something crucial to protect as long as it does not seriously burden the host country – then they likely need to be prioritized and protected as opposed to lost among general cost-benefit analysis of immigration or the vicissitudes of electoral politics.