‘People around the world have learned they can claim asylum and remain in the U.S. indefinitely.’
By Andrew R. Arthur on August 12, 2024
Retired Democratic Massachusetts congressman Barney Frank took to the opinion pages of the Wall Street Journal last week to support the Biden-Harris administration’s latest half-hearted effort to limit the number of migrants who can claim asylum. Frank and I don’t agree on much, but I fully embrace his contention that, “People around the world have learned they can claim asylum and remain in the U.S. indefinitely to pursue their claims without having any other legal authorization”, an abuse that is imposing costs borne disproportionately by “economically vulnerable Americans”.
The “Watered-Down” Asylum Regulation On June 4, the Biden-Harris administration issued a “Proclamation on Securing the Border”, complete with a “Fact Sheet”, DHS explainer, and (194-page) Federal Register notice with an implementing rule.
In explaining the Center’s formal comments on that rule, my colleague Elizabeth Jacobs referred to it as “a watered-down version of a 2018 Trump order that was intended to deter asylum abuse by barring illegal entrants from asylum eligibility”. That’s an apt description.
The Trump rule would have barred any alien who entered the United States illegally from applying for asylum (claims made at the ports of entry would still be considered, however), whereas the Biden-Harris bar only kicks in once Border Patrol apprehensions exceed 2,500 per day based on a seven-day average.
In any event, the biggest difference between the Trump administration’s rule and the current version is that while under both aliens could still seek other protections (“statutory withholding” and protection under the Convention Against Torture, or “CAT”) with higher burdens of proof, most of those applicants were detained under the 45th president, while the opposite is true under Biden-Harris.
The Trump rule was blocked from taking effect in the Ninth Circuit (the Supreme Court never got the chance to weigh in), whereas similar attempts to block the Biden-Harris rule are still pending in the courts. In my opinion, both rules are legal.
“Biden Is Right to Tighten Asylum Policy”. To support the new watered-down Biden-Harris asylum rule and sell it to progressives who oppose any asylum limits, Frank wrote his opinion piece in the Journal, headlined “Biden Is Right to Tighten Asylum Policy”.
While he’s likely not familiar to many these days (having retiredfrom Congress in 2011), Barney Frank used to be a mainstay of the Democratic caucus, a “liberal lion” who served 32 years in the House of Representatives.
Presenting his credentials in the intro of that Journal piece, the former congressman explained:
When I was on the House Judiciary Committee, I was one of the panel’s strongest advocates of a welcoming immigration policy. I argued for the highest level of legal immigration politically achievable, and I voted to extend Temporary Protected Status to refugees fleeing failed governance. I also worked to expand the grounds on which victims of oppression can claim asylum.
That’s not puffery — Frank did all of that, and more, and was dogged in opposing nearly all immigration restrictions.
But Frank is also objectively smart and knows abuses of the protections he fought for when he sees them. That part’s not a surprise; what is surprising is that he put himself out there to explain what’s going on at the border so candidly and succinctly:
Asylum has a very specific role under U.S. law. The immigration statutes provide for various ways in which people can enter the country legally: as permanent residents, temporary visitors, employees in certain classifications, relatives of citizens and more. People who don’t fit into any such category have no legal right to enter the U.S. — unless they qualify for asylum. To do so, they must prove “a reasonable fear of persecution” in their home countries “on account of race, religion, nationality, membership in a particular social group, or political opinion.”
In recent years this exception has swallowed limits on the combined number of immigrants allowed entry under the other specified categories. People around the world have learned they can claim asylum and remain in the U.S. indefinitely to pursue their claims without having any other legal authorization. Consequently, the number of asylum claimants has increased beyond our capacity to verify each one.
Millions of people living in other countries would doubtless prefer to live in the U.S. … . That’s honorable, but simply believing that America offers a safer, more prosperous home for your family doesn’t mean you satisfy the strict criteria to claim asylum status.
That is just a slightly different take on one I have offered: Asylum is an exception to the limits Congress has placed on legal immigration; most illegal migrants can’t satisfy the rigorous standards for that protection; and most migrants coming now aren’t coming to be granted asylum per se, but rather to apply for asylum, and take advantage of the chance to live and work here for years while their claims play out.
Unfortunately, Frank couldn’t bring himself to admit why “in recent years this exception has swallowed limits on the combined number of immigrants allowed entry” under the legal immigration categories.
As a federal judge concluded in March 2023, those migrants are coming primarily because they know the Biden-Harris administration will release them — in contravention of congressional mandates that require DHS to detain them — allowing them to live and work here indefinitely and encouraging others to follow.
That said, I’ll take what I can get.
The Fiscal Impact on “Economically Vulnerable Americans”.Frank is an old-school progressive, and not surprisingly he frames the impact those millions of recently released migrants are imposing on cities and towns across the United States in terms of class-based social justice, explaining:
A related issue is that a disproportionate share of the costs of accommodating these new residents falls on economically vulnerable Americans. Wages, affordable housing, healthcare and other resources are already too meager in those communities in which impoverished migrants are likeliest to arrive.
Every one of those points has been analyzed by the Center in the past three-plus years, and each is indisputably valid. Unfettered immigration undermines wages for those at the bottom of the economic ladder, strains limited healthcareresources system-wide, and exacerbates our housing shortage.
More importantly, however, Frank’s points reveal the degree to which open-borders advocates on both the left and the right have ignored the human costs their so-called “humanitarian” or “libertarian” ideas inflict on those who have the least economic or political power. Current progressives who claim to care the most about such Americans should heed the guidance of the old-school lion.
Returning to Form. Frank quickly returns to haute progressive form at the end of his piece, however, calling for expanded levels of immigration, which, he contends, “our country has the economic and social capacity to accommodate”.
He continues:
But importantly, by every measure of public opinion available, we [who want increased immigration] are a minority on this point. Many Americans, along with citizens across the developed world, fear that an unchecked asylum system will undermine quality of life.
Defying this sentiment would risk sullying compassionate immigration policy and liberal democracy in the broader struggle against xenophobic populism. In allowing the continued unlimited flow of asylum seekers, we would help many people escape abysmal living conditions. But we would also strengthen electorally those whose political goal is to eliminate the asylum escape hatch fully — and who repudiate a broad set of democratic practices. The widespread view that political elites ignore public opinion is a major source of growing support for angry majoritarian absolutism.
I was honored to work with Frank when I was a staffer on the House Judiciary Committee and found him to be funny, warm, and likeable. That said, such dismissive attitudes toward popular concerns are why many Americans feel ignored and abused by a system that considers everyone’s interests but theirs.
There are more strawmen in those two paragraphs then I can count, but I can assure Frank and any like-minded pundits and politicos that there’s nothing xenophobic or anti-democratic about creating admission rules and setting immigration levels and demanding that the executive stick to them.
For years, experts (me included) have been saying the administration’s so-called “compassionate immigration policy” is being abused by smugglers and migrants, imposing real costs on “economically vulnerable Americans”. Perhaps now that liberal lion Barney Frank says it, however, the administration and its decision-makers will listen.
