We Need To Talk About Biden's Executive Order on Asylum

Debunking 6 of the most common asylum myths being used to revive Trump's asylum ban

I know this piece may upset some of my readers, but my job as a human rights lawyer is not to play favorites with politicians, but to uphold justice in all matters. And today, I must speak up for justice for asylum seekers, and clearly state that President Biden's executive order to restrict asylum is a direct affront to the very legal and humanitarian principles that he campaigned on. Making the matter worse is the avalanche of misinformation on what asylum is, and is not. It is crucial to address and correct the several misconceptions being used to justify this harmful policy.

Below I quickly address six common misunderstandings about asylum. I hope you read and share this with your network to better combat the plethora of misinformation that is making meaningful immigration reform even more difficult to achieve.

President Joe Biden announces an executive order on enforcement at the U.S.-Mexico border, in the East Room of the White House in Washington, D.C., June 4, 2024.(Leah Millis/Reuters)

1. Asylum is legal immigration, period.

On June 4, the White House tweeted, “[President Biden] is announcing new executive actions to bar migrants who cross our Southern border unlawfully from receiving asylum.” This is a flawed statement, because asylum itself is legal immigration and there exists no unlawful way to cross our Southern border (or any border) to seek asylum. In other words, the correct way to apply for asylum is precisely to cross the border and seek asylum. This is literally on the USCIS website right now:

This right to asylum is a recognized and protected right under both U.S. and international law. Individuals who seek asylum are doing so in accordance with legal provisions established to protect those fleeing persecution and violence.

2. Asylum seekers do not need a visa to enter the United States.

The very nature of asylum is to provide refuge to those who are unable to obtain visas because they are fleeing immediate danger or persecution. Imposing a visa requirement on asylum seekers would be contrary to the purpose of asylum laws, and would put in danger the lives of those seeking safety from direct threats of violence to their persons. (This is also why the legal and correct way to seek asylum is to get to the United States safely and then seek asylum).

3. Asylum seekers and refugees are two different types of applicants.

An asylum seeker and a refugee are two entirely different types of applicants, and go through two entirely different immigration processes. As the USCIS explains, while both refugees and asylum seekers apply for their respective immigration from outside of their home countries, a person may only seek refugee status from outside the United States, while seeking asylum requires you are present in the United States.

Refugees go through an incredible detailed background check and security check before they are accepted as refugees. Asylum seekers already in the country are thoroughly vetted by an immigration judge before their asylum is granted. This distinction is important because, as I discuss below, Biden’s executive order does nothing to decrease the legitimate need for asylum that those in need seek.

4. There is no “designated port” or “first country” requirement for asylum seekers.

These two claims are most often cited by anti-immigrant activists, and they’re wrong on both counts. U.S. law permits individuals to seek asylum regardless of how they enter the country, and even if they passed through another country to reach the United States. This is codified in both the Universal Declaration of Human Rights Article 14 and in U.S. Code Section 1158(a)(1). For example, Section 1158(a)(1) clearly states:

§1158. Asylum (a) Authority to apply for asylum (1) In general

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section.

So, to further reiterate a point made earlier, crossing the border into the United States without documentation or by passing through a third country to get to the United States does nothing to restrict a person’s legal right to apply for asylum once they are in the United States.

5. Asylum approval isn’t an automatic designation and there aren’t billions of people pouring in.

A MAGA conservative tweeted at me, “What if all 8 billion people on Earth want asylum in America. How many should we accept?” Notwithstanding that 8 billion people most definitely do not want to come to the United States, seeking asylum also doesn’t mean automatic approval. That process involves a detailed legal assessment of claims and circumstances, ensuring that those who genuinely need protection receive it. A judge reviews the claim, ensures it meets the strict criteria, and approves only those who meet the criteria. And no, 8 billion people are not at our door seeking asylum. Since 2000, roughly 40% of asylum cases have been granted—a number totaling about 700,000. Notably, there is no such thing as “economic asylum” (as the right claims exists). Those who meet the criteria are vetted and approved after a thorough process. Those who do not meet the criteria face deportation. And far from 8 billion, the 700,000 granted asylum applications over the last two plus decades account for about .016% of the U.S. population. That doesn’t exactly scream “invasion” as some claim in their cruel attempts to dehumanize asylum seekers.

6. There’s no evidence that restricting asylum will alleviate the immigration crisis.

Finally, and perhaps worst of all, there’s little evidence this executive order will do anything to improve our broken immigration system. I have processed asylum claims for my entire career as an attorney. No one legitimately seeking asylum ever wished to leave their home country, travel thousands of miles, risk life and limb—all for the fun of it. They do so out of desperation because all other options have failed. By denying this process, this right, we undermine the legal frameworks designed to protect the most vulnerable, and damning them to horrific persecution, rape, or murder. And this is not hyperbole. As I addressed in an MSNBC interview way back in 2021, “The Human Rights Campaign did a study and found over 1,500 people that the US deported without hearing their asylum claim were either raped, murdered, or tortured.”

President Biden knows this and himself acknowledged the importance of protecting asylum seekers when he was running for President. On July 26, 2019, he tweeted:

Trump is fighting tooth & nail to deny those fleeing dangerous situations their right to seek asylum in our nation. We should uphold our moral responsibility & enforce our immigration laws with dignity—not turn away those fleeing violence, war, & poverty.

His executive order today starkly contradicts his own stance and campaign promises, representing a significant and troubling departure from his commitment to humane immigration policies. Instead of closing doors, we should focus on actual solutions that uphold our values, such as hiring more immigration judges and attorneys to process asylum claims efficiently, and fully funding USCIS to address the massive immigration backlog.

In Conclusion

As citizens, we must not shy away from calling out this hypocrisy and demanding justice for immigrants and asylum seekers. It is our moral and legal obligation to ensure that those fleeing persecution can access the protections they are entitled to. California Senator Alex Padilla said it well in his statement on Biden’s ‪executive order:

We must always remember that asylum laws were codified to prevent tragedies like that of the S.S. St. Louis, a ship carrying Jewish refugees fleeing Nazi persecution that the United States turned away in 1939. The 1000+ refugees were forced to return to Europe, where at least 254 perished in the Holocaust. This dark chapter in history underscores the vital importance of providing a safe haven to those in desperate need. We must remember these lessons and ensure that our policies reflect compassion, justice, and respect for human rights. President Biden ran on undoing Trump’s cruel asylum bans, and it is critical we hold him accountable to his word.