On the heels of the Biden Administration seeking to grant asylum agents sweeping new powers once adjudicated by immigration judges, the Department of Justice (DOJ) announced on Friday new “efforts to dismantle human smuggling operations increase accountability for those who violate our immigration laws.”

“Efforts include deploying additional DHS Special Assistant U.S. Attorneys to border U.S. Attorneys’ Offices, assigning support staff detailees to critical U.S. Attorneys’ Offices, seeking Justice Department attorneys to serve details in U.S. Attorneys’ Offices in border districts, and partnering with federal agencies to identify additional resources to target these crimes,” reads the press release from the DOJ’s Office of Public Affairs

The prioritization of implementing enforcement-only policies has been noted by many and has created cause for the concern of asylum-seekers. The National Immigrant Justice Center (NJIC) immediately condemned the proposal highlighting the problematic nature of the announcement from the DOJ.

“Today’s announcement, which is one part of a larger directive which includes efforts to disrupt smuggling-related activities, also instructs U.S. Attorneys to work with the Department of Homeland Security to criminally prosecute more people arriving at the border who are referred by border officials for immigration offenses,” reads a statement from NJIC. “Although the directive is vaguely worded, it suggests an increase in prosecutions for federal offenses known as Sections 1325 (“unauthorized entry”) and 1326 (“unauthorized reentry”) of Chapter 8 of the U.S. Code.

“Prosecutions for such offenses are layered on top of the punitive civil immigration detention and deportation processes, add barriers to asylum access, and are rooted in racist laws plagued with due process and fairness concerns,” the statement continued. “When the government refers parents or guardians for criminal prosecution, it leaves children they are traveling with alone in the civil immigration system, a process the prior administration weaponized to separate and traumatize thousands of immigrant families.”

While the rule allowing asylum agents the power to deny asylum may sound good on paper, the efficiency the administration is boasting about will undoubtedly be administered with the racial biases and animus for migrants that is ever so common in Border Patrol operations. The NCIJ is right to spotlight these abuses that are becoming more common every day at the border.

“Relying on criminal prosecutions for immigration violations is a decades-old misguided strategy that causes lasting harm to immigrants and their communities,” said Jesse Franzblau, senior policy analyst at NIJC. “It is unconscionable that the Biden administration is signaling a return to a policy that tore thousands of children from their parents, and incarcerated thousands of immigrants while lining the pockets of private prison companies. The administration should be shifting resources toward humane and logical solutions, focusing on processing and social services rather than measures that only cause harm and devastation at the border.”

In 2021, a federal court agreed that the law used to criminally prosecute people for entering the country without permission after having been previously deported in the Immigration Act of 1929 was racist and intended to be used in a discriminatory way.

Nearly 100 years later, that same law is still enforced as intended by the eugenicists and segregationists who wrote it. In April, Sen. Dick Durbin (D-IL) called for an investigation to determine if the DOJ has been targeting and prosecuting migrants based on their religion or nationality.

Under the new Biden Administration rules administered through various agencies including the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and the DOJ, not only is claiming asylum going to become near-impossible but an asylum seeker’s right to due process under the Constitution is also being targeted and undermined by allowing asylum agents to determine the legality of asylum cases.

“DHS proposes to allow asylum officers (“AOs”) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during certain fear screenings,” reads the summary of the DHS proposed rule change for asylum cases. “Specifically, under this proposed rule, AOs would be authorized to consider certain bars during credible and reasonable fear screenings, including credible fear screenings where the Circumvention of Lawful Pathways (“CLP”) rule applies. The proposed rule is intended to enhance operational flexibility and help DHS more swiftly remove certain noncitizens who are barred from asylum and statutory withholding of removal.”

Historical data has taught us that making asylum more difficult to claim only makes crossing the border between points of entry and fleeing at the sight of Border Patrol agents much more common. In addition, migrants are more likely to attempt to enter the U.S. through more rugged and unforgiving terrain. This not only makes migrants more likely to be exploited by gangs and cartels but also puts them at greater risk of losing their lives in remote areas of the border.

Meanwhile, the prison industrial complex is the largest beneficiary of these policy changes.

Read the full Notice of Proposed Rulemaking granting asylum agents new powers


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Arturo Dominguez

Arturo is an anti-racist political nerd. He is an upcoming author, journalist, advocate for social justice, and a married father of three. He is a top writer on Medium and a regular contributor to several news media outlets. He writes educational and informative material about systemic racism, white supremacy, and racial injustice.

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