The Right to Due Process
On June 4, 2023, United States President Joe Biden signed A Proclamation on Securing the Border and his administration issued an interim final rule titled Securing the Border. This is aimed at stemming the flow of immigrants into the U.S. along the southern border.
Associate Clinical Professor Victoria Carmona, who runs the Immigration Clinic at the C-K Law Group, Chicago-Kent College of Law’s in-house law firm, has questions about the legality of the new policy.
“The complex and extensive restrictions imposed by this policy constitute a severe erosion of due process and the asylum protections guaranteed by U.S. law,” she says. “At the same time, the federal government lacks the necessary resources to put in place effective screening procedures to ensure a fair and orderly process.”
The new policy goes into effect when there is a calendar-day average of at least 2,500 border encounters for seven consecutive days and continues until 14 calendar days after there is a seven consecutive calendar day average of less than 1,500 border encounters.
“The bar will be in effect most of the time, beginning immediately,” says Carmona. “Since February 2021, daily migrant encounters have exceeded these numbers every day.”
Carmona believes the executive order could effectively bar access to asylum protections for nearly all people seeking protection at the border, with very narrow exceptions. Most people will instead need to apply for statuses with much fewer legal protections—they will now need to show nearly the same level of proof in their preliminary screening as they would currently need to show at a full hearing before an immigration judge.
Asylum seekers will also have only four hours to consult an attorney before their screening.
There are also changes to the Credible Fear Interview process. The U.S. Department of Homeland Security will no longer ask questions to screen people for persecution, torture, or other vulnerabilities. Instead, migrants will have to express their fear of returning to their home countries without any prompting from DHS officers.
Carmona doubts the new policy will pass muster in court.
“This proclamation will violate current law and fundamental principles of due process and will do little to solve the challenges we face at the southern border,” she says.
