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Legal Analysis of Recent Immigration Restrictions at the Border: Perspective of an Immigration Lawyer

On Tuesday, President Joe Biden announced significant restrictions for migrants seeking asylum at the U.S.-Mexico border in an effort to address immigration as a critical issue before the upcoming November elections. From a legal perspective, these new measures pose various questions and challenges that migrants and their advocates must carefully consider.

Details of the Executive Order

The executive order signed by President Biden introduces a policy that could deny asylum to migrants if it is determined that the southern border is being “overwhelmed.” The implementation of this policy will be triggered when border encounters exceed 2,500 per day, a figure that is currently being met. The restrictions will remain in place until the daily average of encounters falls below 1,500 per day for a week.

Migrants arriving at the border without expressing fear of returning to their home countries will be expelled immediately and may face a five-year ban on re-entering the United States, as well as potential criminal charges. Those who express fear or intent to seek asylum will be evaluated under stricter standards. If they pass this process, they can access limited forms of humanitarian protection, such as the UN Convention Against Torture.

Legal Aspects and Complications

The legal authority used by President Biden is derived from Section 212(f) of the Immigration and Nationality Act, which allows the president to restrict the entry of certain migrants for national interest reasons. However, the implementation of this order faces significant challenges. Insufficient funding from Congress and legal limitations regarding the detention of families complicate the government’s efforts to quickly deport migrants.

Moreover, there are concerns about how this order will apply to citizens of countries not covered by the existing agreement with Mexico, which accepts up to 30,000 citizens per month from Cuba, Haiti, Nicaragua, and Venezuela.

Comparison with Previous Policies

While the Biden administration insists that its order differs significantly from the Trump administration’s policies, both rely on the same legal provisions. However, Biden’s order includes humanitarian exemptions for victims of human trafficking, unaccompanied minors, and people with severe medical emergencies, as well as those using the CBP One app to schedule appointments with border officials.

The new restrictions represent a significant attempt by the Biden administration to control immigration and manage the southern border more effectively. However, these measures also introduce legal challenges and risks that both migrants and their advocates must be prepared to face.

As an immigration lawyer, I urge all individuals who are in the United States without legal status to take steps to regularize their situation. Immigration laws and policies are complex and constantly changing. Obtaining proper and timely legal advice can be crucial to protecting your rights and securing a stable future. If you need assistance or have questions about your immigration status, please do not hesitate to contact us for a consultation. Legalizing your status is an important step toward ensuring your peace of mind and well-being in this country.

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