WASHINGTON — In the months since President Joe Biden imposed sweeping restrictions on asylum at the U.S.-Mexico border, the policy appears to be working exactly as he hoped and his critics feared.
The number of people asking for haven in the United States has dropped by 50% since June, according to new figures from the Department of Homeland Security. Border agents are operating more efficiently, administration officials say, and many of the hot spots along the border, like Eagle Pass, Texas, have calmed.
The numbers could provide a powerful counternarrative to what has been one of the Biden administration’s biggest political vulnerabilities, particularly as Vice President Kamala Harris, the Democratic presidential nominee, tries to fend off Republican attacks.
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But migrant activists say Biden’s executive order is weeding out far too many people, including those who should be allowed to have their cases heard, even under the new rules. They say the figures are so low in part because of a little-noticed clause in the new policy, which changed how migrants are treated when they first arrive at the border.
Under the new rules, border agents are no longer required to ask migrants whether they fear for their lives if they are returned home. Unless the migrants raise such a fear on their own, they are quickly processed for deportation to their home countries.
It is difficult to know how many people with legitimate cases are turned back because they don’t know to “manifest fear,” as the practice is known. But critics of the new policy say it is deeply unfair to desperate people who have no idea how to seek help in America.
“The government knows full well from past practice that the manifestation standard will result in migrants with legitimate asylum claims being denied even a screening for danger,” Lee Gelernt, lead attorney for the American Civil Liberties Union, which has sued to block the policy in federal court, said in an email. “Put simply, the manifestation standard will send migrants fleeing for their life back to grave danger, and the government knows it.”
Biden’s executive order was a dramatic rewriting of the traditional American promise to allow people from all over the world to take refuge in the United States when they no longer feel safe in their home countries.
The order mandates that only people who enter the country at an official port of entry with an appointment can be considered for asylum at the southern border, with only limited exceptions for unaccompanied children, victims of human trafficking and people facing serious medical emergencies or threats to their lives.
Before the new rules went into effect, migrants would cross the border illegally and seek out border agents to surrender, knowing that anyone who set foot on U.S. soil could ask for protection. Often, after an initial screening, they would be released into the United States to wait, sometimes for years, for their cases to come up.
Biden’s order changed that. Now, the majority of migrants are turned back quickly.
The administration believes the new screening process is more fair, because migrants are more likely to express fear if they are prompted with a question. Instead of asking what could be seen as a leading question, border agents have been told to look out for any clues showing a fear of return, including crying or shaking. Signs and videos in detention facilities inform migrants that they can tell an officer they fear deportation.
An administration official, who spoke on the condition of anonymity to discuss the policy freely, said the new rules allow the agency to focus on migrants who are more likely to have legitimate claims. The person said more than 1,000 migrants a day can schedule an appointment to claim asylum at an official port of entry, so there is still a pathway for people seeking refuge.
“Every day DHS agents and officers effectively execute a range of complex policies and guidelines, to include those related to manifestation of fear,” the agency said in a statement. “We are abiding by our international humanitarian obligations, and when individuals manifest fear, they are referred for the appropriate screening interview.”
Matthew Hudak, former deputy chief of the U.S. Border Patrol, said it’s a “game changer” that border agents no longer have to ask about fear.
“It’s the difference between committing a crime, getting a piece of paper telling you to show up to court in a couple of years, or putting handcuffs on you and bringing you back to a jail to face a judge,” he said.
Biden’s executive order is not the only reason the numbers have dropped.
Mexico has ramped up enforcement, intercepting migrants en route to the border. And illegal crossings typically fall after a major policy change — only to rise again later — as migrants try to make sense of the new rules.
But it is clear that the restrictions are having a significant effect.
The number of people crossing into the United States has plummeted since Biden imposed the restrictions. In July, there were about 56,000 illegal crossings, the lowest monthly tally of the Biden administration. In December alone, that number was 250,000.
The number of people seeking asylum, in turn, also fell precipitously. Although the Department of Homeland Security did not give exact figures, the agency said in a court filing last week that asylum requests had dropped more than 50%.
The migrant advocacy groups Human Rights First and Kino Border Initiative said that 75% of migrants at a shelter in Nogales, Mexico, said they had been turned back after border agents ignored their claims or didn’t give them the chance to raise them.
Deyvis, a 24-year-old Colombian man, said he had crossed the border with his wife in early July because they were being targeted for being part of an Indigenous community. Deyvis said he pointed to signs on the wall of the detention facility that explained that migrants could ask for protections.
“I told them that I wanted to talk to them about it because I have been assaulted, I had been kidnapped. But they would tell me that they were not in charge of that,” he said through an interpreter, asking that only his first name be used because of fears for his safety.
He was quickly deported back to Colombia, where he said he is now in hiding.
“What I wanted,” he said, “is to be able to live without fear.”
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