Border agents begin turning back migrants under new Biden restrictions

Biden’s new measures impose restrictions on asylum as long as illegal border crossings remain above an average of 1,500 per day.

The officials said it was too soon to gauge whether the restrictions would have a deterrent effect on migrants seeking to enter the U.S. illegally, and they acknowledged limitations in detention space and deportation capacity would blunt their ability to apply the restrictions.

One official said the administration will increase efforts during the initial weeks of the new restrictions to take advantage of Biden’s measures, but cautioned that the effect on crossings remained to be seen.

Biden officials say deportations are crucial to driving down unlawful crossings because they impose consequences on migrants who do not seek legal entry. The administration has not scheduled a short-term increase in deportation flights to ramp up the number of migrants returned to their home countries under the new measures, according to three separate Department of Homeland Security officials who spoke on the condition of anonymity to discuss internal operations.

Biden officials say they have increased the number of migrants being deported or returned to Mexico to the highest level in a decade, and plan to ramp up flights in the coming weeks. U.S. Immigration and Customs Enforcement operates about five to seven deportation flights per day, primarily to Central America and other nations in the Western Hemisphere. Those flights typically carry about 100 to 120 deportees. The flights require significant planning and coordination, in addition to their cost.

The DHS officials said the administration would instead seek to send more migrants back across the land border with Mexico. Mexican authorities limit the nationalities they will take back to Central Americans, Cubans, Haitians and Venezuelans.

Mexico does not take back the migrants who have been crossing into the United States in record numbers from China, India, nations in Africa and elsewhere around the world. The U.S. officials who spoke to reporters Wednesday acknowledged Biden’s new restrictions would not allow for quick deportations of those migrants even while cutting off their ability to qualify for U.S. asylum and the legal residency it bestows.

The Biden administration said it declared an emergency on the border this week because the immigration system is working at full tilt and still cannot keep up with the number of arrivals from around the world who are claiming asylum to get into the United States, even though most are ineligible.

Officials say immigration judges are churning out historic numbers of court rulings, asylum officers are processing thousands of cases, and immigration agents are removing migrants at the fastest clip in more than a decade. More are arriving and seeking protection at the U.S. southern border, despite expanded opportunities for them to apply to enter legally, they say.

Biden’s emergency measures will remain in place until illegal crossings fall below a daily average of 1,500 per day for a week straight. They have not been that low for any period during Biden’s presidency. The restrictions on asylum eligibility would be triggered again if average daily crossings surpass 2,500, according to the new rules.

In December, when illegal entries reached an all-time high, crossings averaged more than 8,300 daily. Last month, agents tallied about 3,800 illegal crossings per day on average, according to the latest U.S. Customs and Border Protection data obtained by The Washington Post.

Internal projections signal that border arrivals could reach “extremely elevated levels in the weeks to come,” averaging 3,900 to 6,700 unexpected arrivals a day at ports of entry and in illegal crossings, on average, from July to September.

Officials say the rules restrict protections to migrants “most likely to be persecuted or tortured” if deported to their native countries.

Asylum is a humanitarian protection that allows migrants to remain in a country permanently if they would face persecution or torture if sent home because of their race, religion, nationality, political opinion or another defining characteristic. Officials say claims have soared in recent years and swamped the system, creating an incentive for people to file unmeritorious applications that allow them to stay for years before a decision is rendered.

Migrants will be ineligible for asylum unless they show that “exceptionally compelling circumstances” exist, such as a health emergency or an imminent risk of harm. Those who are ineligible for asylum may be screened for other forms of humanitarian protection, but those have higher standards and do not allow migrants to stay permanently.

The rule also speeds up the amount of time it takes agents to process migrants and determine whether they might qualify for protection, which usually takes about two hours per person. The time will be cut by about 35 to 40 minutes, one official said.

Before the new rules, officials would ask migrants if they are afraid to return to their home countries and if they could be harmed if deported. If migrants answered yes, they were generally referred to an asylum interview and the backlogged immigration court system.

Biden’s new measures are designed to boost deportations and limit asylum eligibility by requiring migrants to “manifest” a fear — verbally or through their body language — to a border agent.

Officials said they would post signs in CBP facilities and provide written information instructing migrants to share their fears with agents, so they could be screened for protection. But that would be a lesser form of protection and a more restrictive criteria under Biden’s new measures.

The American Civil Liberties Union said it plans to challenge Biden’s measures in court.

Lindsay Toczylowski, executive director of Immigrant Defenders Law Center, a legal aid provider in California, said migrants will face extreme disadvantages under the new rules, with little time to seek guidance from lawyers.

“It’s just going to add to the lack of options for people who are trying to save themselves and their children,” she said.

She said the limited time to find a lawyer — reduced from 24 hours to four hours — “makes it impossible for people to seek legal assistance and impossible for nonprofit organizations to provide legal assistance in any way.” And, she said, the restrictions will create more backlogs in the administration’s legal pathways to enter the United States.

“If that is by design, it’s just a huge betrayal of our values of human rights and due process,” she said. “It puts people’s lives at risk.”