This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
Politico and Axios report that the Biden administration is planning to announce changes to its border policy today. Do we know what those changes are yet? No, we don’t — but we have some very good guesses.
In this brief Crystal Ball item, we’ll tell you (1) what the changes will be, and (2) why the Biden administration has chosen this pathway, and (3) what effects the changes will have on our immigration system. By the time this advertorial goes live, events may have proven our predictions correct — or not! We are all accountable to the future.
What Will Happen?
The Biden administration will announce a proposed rule, using the regulatory process, which tightens the screening process for asylum seekers by shunting more of them away from ordinary immigration courts into the expedited removal process.
Right now, there are two tracks for asylum applicants at the border: (1) Removal proceedings, and (2) Expedited removal. Removal proceedings are what we all think of when we think of immigration court — an Immigration Judge, presiding over a courtroom in which the government is represented by counsel and the immigrant either makes his case pro se or with the assistance of a lawyer; this case takes months at best and many years at worst. Expedited removal is much faster — a matter of hours, days, or weeks.
The Biden Administration is going to announce a proposed rule that allows border officials to place people into expedited removal if, in the judgment of the official, the person is unlikely to receive asylum because “there are reasonable grounds for regarding the alien as a danger to the security of the United States.”
Why Has the Biden Administration Chosen to Do This?
We think that an internal fight happened inside the Biden administration, and immigration hawks lost. Immigration hawks within the President’s party were urging Biden to promulgate an executive action which replicated certain elements of the Langford Bill — for example, capping asylum applications or barring them outright using Section 212(f) of the Immigration and Nationality Act. Immigration doves, naturally, opposed this.
The projected changes come nowhere close to what some expected. Quantitatively, we expect the projected changes to have little effect; very few people will be shunted out of the ordinary removal process because they pose “national security” risks for the simple reason that most asylum applicants don’t pose a particularized risk to U.S. national security.
“We will exclude those who threaten our national security from the asylum process” does sound restrictionist, though, and the Biden Administration may think that this will persuade some voters, on the margin, that Biden is tough on immigration.
How Will the New Rules Change Our Immigration System?
We foresee no major changes on the ground. Regulations go through a Notice and Comment period and then — as so frequently in our divided and litigious society — are frequently challenged in federal court. We expect that this proposed rule will be challenged, too, and the resolution of legal process will take considerably longer than the current Presidential election cycle.
As always, we welcome your comments and will do our best to respond.