Kudrat D. Kontilis*
I. Introduction
On September 27, 2024, President Joseph R. Biden extended the immigration restrictions first put in place by previous executive actions when he issued Proclamation 10773 (September Proclamation).[1] The September Proclamation broadened President Biden’s June Proclamation and Interim Final Rule (IFR) on securing the border, which temporarily suspended and restricted the entry of noncitizens at the southern border.[2] President Biden issued the September Proclamation in response to evolving migration patterns and enforcement priorities.[3] On September 30, 2024, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) issued a Final Rule to align federal immigration policies with the September Proclamation.[4] Consistent with the IFR and its intent to drastically reduce southern border crossings, the DHS and DOJ’s Final Rule differs from the IFR in two significant ways.[5]
First, the Final Rule’s measures to secure the border under Sections 212(f) and 215(a) of the Immigration and Nationality Act[6] will be lifted only “after the 7-consecutive-calendar-day average of encounters between the ports of entry falls below 1,500 encounters per day for 28 consecutive calendar days.”[7] This establishes a longer monitoring period, which DHS contends will ensure that any drop in encounters reflects a sustained decrease, rather than a temporary fluctuation.[8]
Second, the daily encounters’ calculation for the consecutive day averages will now include unaccompanied children from non-contiguous countries.[9] Previously, only unaccompanied children from contiguous (i.e., neighboring) countries were counted.[10] This change was made because excluding children from non-contiguous countries underestimated the strain that their processing places on the system.[11] However, unaccompanied children from all countries will remain exempt from the Proclamations and its enforcement measures under the Final Rule.[12] Moreover, the IFR exceptions have not changed.[13] During periods of high encounters, the June Proclamation will apply across the southern border, but lawful permanent residents (LPRs), unaccompanied children, victims of a severe form of trafficking, and noncitizens with a valid visa or other lawful permission to enter the United States still are exempted from the Proclamations and Final Rule.[14]
According to the Pew Research Center, the number of border crossings from December 2023 to August 2024 has declined sharply, with August showing a 77% decline since December 2023 as seen in Figure 1.[15] Such a decline has been credited in part to the June Proclamation.[16]
Figure 1[17]
II. Background
The focus on tightening restrictions at the southern border not only highlights critical issues in U.S. immigration policy, but also underscores how the southern border has long been the center of immigration enforcement. This approach has inadvertently caused a rise in border crossings in less fortified areas, including the northern border with Canada, as stricter asylum application procedures and enhanced security at the southern border push migrants to seek alternative entry points.[18]
The busiest sector at the northern border is the Swanton Sector, which includes all of Vermont, six upstate New York counties, and three New Hampshire counties.[19] The Swanson Sector spans 295 miles of international boundary with the Canadian provinces of Quebec and Ontario and is the first international land boundary east of the Great Lakes.[20] So far this year, U.S. Customs and Border Protection (USCBP) agents have had nearly 20,000 encounters with migrants between ports of entry on the northern border as seen in Figure 3.[21] This represents a 95% increase from last year, including Swanton Sector Border Patrol Agents apprehending “more than 10,000 subjects from 83 countries.”[22]
Figure 2[23]
Figure 3[24]
The shift from the southern border to the northern border is not just a product of smugglers and migrants adapting to the tightening of immigration laws and policies, but rather, the shift is due to various key factors exemplifying the fluid nature of migration.[25] Even though both the United States and Canada have been parties to the Canada-U.S. Safe Third Country Agreement (STCA) since 2004, Canada’s relatively open immigration policies and access to asylum processing, along with loopholes in STCA, have made Canada an attractive stop for migrants before attempting to cross into the United States from the northern border.[26]
III. Discussion
A. Canada’s Open Immigration Policies and Bypassing the STCA
Migrants often take advantage of Canada’s open immigration policies to enter the country legally, typically through visitor visas, student visas, or other temporary permits as Canada’s immigration system is known for its openness to newcomers, particularly compared to U.S. visa policies.[27] In 2022, Canadian officials granted more than 600,000 new temporary work permits to foreigners and the government is pursuing an ambitious plan to welcome 500,000 immigrants each year by 2025.[28] Once in Canada, some migrants then decide to cross into the United States to access more extensive family or community connections, work opportunities, or their original goal of reaching the United States.[29]
The STCA states that if a migrant enters Canada first, then they are not eligible to apply for asylum in the United States at both official and unofficial ports of entry, the latter was added in a recent change.[30] Still, this has not stopped unofficial crossings as smuggling networks have adapted to the STCA enforcement, moving migrants across the U.S.-Canada border at remote, unmonitored locations.[31] These networks provide routes through rural or less fortified areas, taking advantage of the vast and often under-patrolled northern border.[32] Although unofficial crossings can be risky due to harsh weather conditions, they allow migrants to avoid detection.[33] Once migrants cross into the United States through unofficial points, they can claim asylum under U.S. law because the United States is obligated, under the principle of non-refoulement under the 1951 Refugee Convention, to process asylum claims made within its territory.[34]
B. Lack of Resource Allocation to the Northern Border and Expansion of STCA
Historically, the United States has concentrated most of its resources on the southern border, leaving the northern border with limited personnel and infrastructure.[35] And thus, the increase in unauthorized crossings at the northern border should push USCBP and Air and Marine Operations to rethink resource allocation as they have fewer agents and resources and are often facing competing priorities.[36] Even though in 2023, the USCBP temporarily reassigned groups of 20-25 agents from other areas to the Swanton Sector, agent staffing remains low as compared to the southern border.[37] Under the 2023 STCA expansion, if a USCBP agent catches a migrant at an unofficial border crossing, then the agent can send them back, barring some exceptions.[38] However, in August 2024, President Biden’s administration rolled out two changes to streamline the asylum process on the northern border.[39]
The first change requires migrants to have their documents ready when U.S. asylum officers conduct a ‘Threshold Screening Interview’, a preliminary interview conducted to assess whether the individual qualifies for an exemption from the Safe Third Country Agreement.[40] Previously, migrants could postpone those screenings to gather documents proving they merit an exemption.[41] The other change is that the asylum officers now will consider only the documentary evidence available at the time of the Threshold Screening Interview. This limits the asylum seeker’s ability to present additional supporting evidence after the interview, heightening the risk of rejection if they are not fully prepared from the outset[42] Certain groups, such as unaccompanied children and those with family members in the United States, are not subject to the agreement.[43] The second change will reduce the time migrants have to consult with lawyers before their screenings with U.S. asylum officers to a minimum of four hours—down from a 24-hour minimum.[44] That update matches an identical change made at the U.S.-Mexico border in June, in connection with President Biden’s move to severely restrict asylum there.[45]
C. Humanitarian Implications and Analysis
The latest procedural changes to the processing of asylum claims on the northern border have placed a heavy burden on the incoming asylum seekers. Specifically, the asylum seekers now must enter the United States fully prepared with relevant documentation and be able to find a lawyer within four hours. This puts additional pressure on asylum seekers to secure legal representation while still in Canada or to proceed without legal representation. Due to language barriers and a lack of understanding of the asylum process and procedural rules, if asylum seekers do not find legal help in time, that likely will be detrimental to their case. Studies show that immigrants with legal representation are 10.5 times more likely to win their right to remain in the United States.[46] Although the changes’ purpose is to streamline the removal and deportation of unauthorized individuals, they weaken the legal safeguards that were previously available to asylum seekers.[47] As a result, asylum seekers may be deported without a proper chance to present their case or seek legal counsel. This erosion of due process undermines protections that are crucial for ensuring fair treatment in immigration proceedings.
Various state and federal lawmakers have raised concerns of unsafety about the potential security risks due to illegal crossings.[48] Specifically, many cite the 2023 fiscal year when 484 people on the terrorist watchlist were apprehended trying to cross the northern border.[49] Despite the growing fear, migrants are less likely to commit crimes than U.S.-born persons.[50] By narrowing access to asylum on the northern border, the United States pits the immigration policy of protecting U.S. citizens on the northern border against the humanitarian concern of vulnerable migrant populations fleeing violence and coming to the United States for a better life.[51] Even though locals have not reported a spike in crime in the Swanton Sector, the increased incidents of migrants crossing through people’s personal properties and a lack of information and support regarding this increase have made residents of border towns residents scared and feeling vulnerable.[52]
IV. Conclusion
The perception of asylum seekers as a threat or as people “sneaking in,” is a fear-based binary, pitting U.S. residents and incoming migrants against each other on the northern border, which will lead to further alienation of vulnerable populations crossing the border to seek asylum.[53] Some of the ways of solving this issue involve assessing the northern border security strategy, which has not been assessed since 2018, increasing knowledge sharing with residents of the northern border, and providing resources to border towns to handle the migrant surge[54]. This needs to be coupled with a bipartisan solution like the Northern Border Security Enhancement and Review Act and Improving Coordination for the Northern Border Act.[55] Both these bills aim to strengthen the security and management of the U.S.-Canada border and focus on improving resource allocation, enhancing surveillance, and increasing collaboration between federal, state, and local agencies to address the unique security challenges of the northern border.[56]
While enacting these laws, the U.S. government must also streamline resources for incoming asylum seekers by not narrowing the gates to asylum but by further increasing legal pathways when they attempt to cross the Northern border. When asylum seekers have accessible, defined, and legal pathways founded in humanity to request asylum, it reduces their reliance on unofficial or dangerous entry points, such as crossing through residential areas or unmonitored borders.[57]
*Kudrat D. Kontilis, is an international attorney (licensed to practice law in India) with an LL.M. in International Law from the Fletcher School of Law and Diplomacy, currently serving as the Vice Chair of the San Francisco Immigrant Rights Commission. She is also a researcher for the Center for Gender and Refugee Studies (CGRS) and has over five years of experience in gender-based violence asylum claims. Kudrat has co-chaired Women’s March San Francisco and is a published author on themes related to immigration law & policy along with human rights and related issues. Her debut novel based on the human trafficking of women from Nepal to India after the Nepal Earthquake of 2015 was published in 2016 and continues to be the only book on this issue.
[1] Press Release, A Proclamation on Amending Proclamation 10773, The White House (Sept. 30, 2024), https://www.whitehouse.gov/briefing-room/presidential-actions/2024/09/30/a-proclamation-on-amending-proclamation-10773/ [https://perma.cc/GZ23-W7DQ] [hereinafter September Proclamation].
[2] Press Release, Fact Sheet: President Biden Announces New Actions to Secure the Border, The White House, (June 4, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/04/fact-sheet-president-biden-announces-new-actions-to-secure-the-border/ [https://perma.cc/PTA5-64DD]; Securing the Border, 89 Fed. Reg. 48710 (June 7, 2024) (to be codified at 8 C.F.R. pts. 208, 235, 1208).
[3] September Proclamation, supra note 1.
[4] Press Release, Fact Sheet: Joint DHS-DOJ Final Rule Issued to Restrict Asylum Eligibility for Those Who Enter During High Encounters at the Southern Border, U.S. Dep’t of Homeland Sec. (Sept. 30 2024), https://www.dhs.gov/news/2024/09/30/fact-sheet-joint-dhs-doj-final-rule-issued-restrict-asylum-eligibility-those-who – :~:text=As with the IFR, the,is used to screen for [https://perma.cc/ZKW3-N6GG] [hereinafter Joint DHS-DOJ Final Rule].
[5] Id.
[6] Immigration and Nationality Act §§ 212(f), 215(a) give the President of the United States the authority to suspend or restrict the entry of noncitizens into the country.
[7] Joint DHS-DOJ Final Rule, supra note 4.
[8] Id. Under the IFR, U.S. authorities were empowered to immediately and categorically suspend the right of non-citizens who unlawfully crossed the U.S.-Mexico border to request asylum when the weekly average of migrant encounters between port of entries reached 2,500 per day. Once triggered, this restriction remained in effect until two weeks after the weekly average of daily encounters fell below 1,500.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] John Gramlich, Migrant encounters at the U.S.-Mexico border have fallen sharply in 2024, Pew Rsch. Ctr. (Oct. 1, 2024), https://www.pewresearch.org/short-reads/2024/10/01/migrant-encounters-at-u-s-mexico-border-have-fallen-sharply-in-2024/ [https://perma.cc/B7JX-KQAP].
[16] Id.
[17] Id.
[18] Bethany Blankley, Illegal border crossings are still on the rise at the northern border, N.Y. Post (July 3, 2024), https://nypost.com/2024/07/03/us-news/illegal-border-crossings-smash-records-at-the-northern-border/ [https://perma.cc/5NPM-H5R8]; Cara Chapman, Northern border communities see a dramatic increase in unauthorized migrant crossings, NPR (Aug. 19, 2024), https://www.npr.org/2024/08/15/nx-s1-5069710/northern-border-communities-deal-with-dramatic-increase-in-illegal-crossings [https://perma.cc/FH64-E6KN].
[19] Blankley, supra note 18.
[20] Id.
[21] Nationwide Encounters, U.S. Customs & Border Prot. (last modified Oct. 22, 2024), https://www.cbp.gov/newsroom/stats/nationwide-encounters [https://perma.cc/WG5L-NBR4].
[22] Id.; Chief Patrol Agent Robert Garcia (@USBPChiefSWB), X (June 10, 2024, 6:10 AM), https://x.com/USBPChiefSWB/status/1800108261120823554 [https://perma.cc/8V4B-3H4K].
[23] Jennie Taer, Illegal migrant crossings skyrocket 50-fold under Biden-Harris admin at northern border stretch that includes New York, N.Y. Post (Oct. 3, 2024), https://nypost.com/2024/10/03/us-news/northern-illegal-border-crossings-up-50-fold-under-biden-admin/ [https://perma.cc/P6UC-Y9F3].
[24] Nationwide Encounters, supra note 21.
[25]Behind the surge in migrants crossing America’s northern border, The Economist, Aug. 21, 2024, https://www.economist.com/united-states/2024/08/21/behind-the-surge-in-migrants-crossing-at-americas-northern-border [https://perma.cc/8G8U-J32M].
[26] Canada-US Safe Third Country Agreement, Government of Canada (last modified Mar. 27, 2023), https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html [https://perma.cc/2KDM-W5ET].
[27] Diana Roy & Amelia Cheatham, What is Canada’s immigration policy? Council on Foreign Relations (last updated Mar 28, 2024), https://www.cfr.org/backgrounder/what-canadas-immigration-policy [https://perma.cc/GHV4-U3KG].
[28] Id.
[29] Sergio Martínez-Beltrán, Indian migrants drive surge in northern U.S. border crossings, NPR (Sep 10, 2024 at 6:00 am), https://www.npr.org/2024/09/10/nx-s1-5091259/indian-migrants-immigration-canada-northern-border-illegal-us-customs-and-border-protection [https://perma.cc/VM6D-WWL6].
[30] Canada-US Safe Third Country Agreement, supra note 26.
[31] Isabelle Steiner, Safe Third Country Agreement Expansion Causes Asylum Seekers to Explore New Routes, Wilson Ctr., (Sep. 14, 2023) https://www.wilsoncenter.org/blog-post/safe-third-country-agreement-expansion-causes-asylum-seekers-explore-new-routes [https://perma.cc/2WGY-K2TP].
[32] Id.
[33] Brian Colleran, As illegal crossings increase at the northern border, safety concerns grow in Vermont, New York, NBC5 (last updated Aug 6, 2024), https://www.mynbc5.com/article/nbc5-looks-at-illegal-crossings-at-the-northern-border/61798041 [https://perma.cc/RC4V-C4TK].
[34] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
[35] U.S. Gov’t Accountability Office, Northern Border Security: CBP Identified Resource Needs but Should Improve Oversight of Technology Investments, GAO-19-470 (June 2019), https://www.gao.gov/assets/gao-19-470.pdf. [https://perma.cc/ZR6K-A2YV]. DHS has not published a new northern border security strategy since 2018. See Northern border strategy, U.S. Dep’t of Homeland Sec. (last updated May 11, 2023), https://www.dhs.gov/archive/publication/northern-border-strategy [https://perma.cc/WJ72-7GNR].
[36] Id.
[37] Mark Moore, Border patrol reassigns some agents to busy Canada frontier: report, N.Y. Post (Mar. 7, 2023), https://nypost.com/2023/03/07/border-patrol-agents-reportedly-reassigned-to-northern-border/ [https://perma.cc/JSG3-SRLK].
[38] Joel Rose, U.S. and Canada reach a deal to close a popular but unofficial border crossing, NPR (Mar 24, 2023), https://www.npr.org/2023/03/24/1165860125/us-canada-deal-biden-trudeau-migrants-border-crossings [https://perma.cc/44YZ-TBFM].
[39] Asylum, U.S. Citizenship & Immigr. Services (last updated Sept. 4, 2024), https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum [https://perma.cc/G5LY-2XVS].
[40] Camilo Montoya-Galvez, U.S. to speed up asylum processing at northern border to deter migrant crossings, CBS News (Aug. 13, 2024), https://www.cbsnews.com/news/us-canada-border-asylum-processing-migrant-crossings/.
[41] Id.
[42] Aline Barros, US moves to speed up asylum processing at Canadian border, Voice of Am. (Aug. 14, 2024 at 7:21 pm) https://www.voanews.com/a/us-moves-to-speed-up-asylum-processing-at-canadian-border/7743082.html [https://perma.cc/6M7F-S69K]
[43] Montoya-Galvez, supra note 40.
[44] Id.
[45] Id.
[46] Zameena Meijia, Advocates and Lawmakers Rally to Demand Right to Counsel in Immigration Court and $150M for Legal Services Funding, Vera Inst. of Just. (Mar. 13, 2024), https://www.vera.org/newsroom/advocates-and-lawmakers-rally-to-demand-right-to-counsel-in-immigration-court-and-150m-for-legal-services-funding [https://perma.cc/UND9-P272].
[47] Kim Corona, Immigrant Advocates Demand Due Process as Washington Prepares New Northern Border Restrictions, N.Y. Immigr. Coal. (Aug. 15, 2024), https://www.nyic.org/2024/08/immigrant-advocates-demand-due-process-as-washington-prepares-new-northern-border-restrictions/ [https://perma.cc/E8DM-TWCP].
[48] Id.
[49] Louisa Moller, What’s behind the record number of illegal crossings at the U.S.-Canada border, CBS News (last updated Mar. 15, 2024), https://www.cbsnews.com/boston/news/northern-border-illegal-crossings-vermont-canada-new-hampshire-new-york-question-everything/ [https://perma.cc/FB75-Y86Y].
[50] Stephanie Kulke, Immigrants are significantly less likely to commit crimes than the U.S.-born, Nw. Now (Mar. 12, 2024), https://news.northwestern.edu/stories/2024/03/immigrants-are-significantly-less-likely-to-commit-crimes-than-the-us-born/ [https://perma.cc/NE74-XLGP].
[51] Id.
[52] Chapman, supra note 18.
[53] Pattison, Emma, & Garrick R. Davidson, The Role of Perceived Threat in Australians’ Endorsement of Asylum-Seeker Policies, 13 J. Pac. Rim Psychol. e21 (2019), https://journals.sagepub.com/doi/10.1017/prp.2019.13 [https://perma.cc/7AHS-4PZP].
[54] Northern border strategy, supra note 36.
[55] Press Release, Gillibrand Introduces Bipartisan Bill to Strengthen Northern Border Security, Senator Kirsten Gillibrand (Sept. 25, 2024), https://www.gillibrand.senate.gov/news/press/release/gillibrand-introduces-bipartisan-bill-to-strengthen-northern-border-security/ [https://perma.cc/SRL4-Q6EP]; Press Release, Pappas Introduces Bipartisan Legislation to Strengthen Security Coordination at Northern Border, Rep. Chris Pappas (Sept. 6, 2024), https://pappas.house.gov/media/press-releases/pappas-introduces-bipartisan-legislation-to-strengthen-security-coordination-at-northern-border [https://perma.cc/9GWA-D73M].
[56] Lia Chien, Congress aims to boost enforcement at the border – with Canada, Tennessee Lookout, (Aug. 10, 2024 at 12:47pm) https://tennesseelookout.com/2024/08/10/congress-aims-to-boost-enforcement-at-the-border-with-canada/ [https://perma.cc/SH48-U2CR].
[57] Ariel G. Ruiz & Andrew Selee, U.S. Legal Pathways for Mexican and Central American Immigrants, by the Numbers, Migration Pol’y Inst. (Aug. 2024), https://www.migrationpolicy.org/sites/default/files/publications/mpi_central-america-mexico-us-pathways-2024-final.pdf [https://perma.cc/2Q8V-NJ8F].
