Borderline illegal

s Americans recoiled this week at images of Border Patrol agents on horseback trying to force would-be Haitian asylum seekers back towards Mexico, the Biden administration has for the most part called its exercise of power a necessary evil. Monday, Homeland Security Secretary Ali Mayorkas deemed it a “heartbreaking situation,” but necessary to send the message that, “if you come to the United States illegally, you will be returned.” (White House Press Secretary Jen Psaki struck a somewhat different tone when she called footage of Border Patrol agents whipping at Haitians “horrific,” saying “this is not who we are.”)

What administration policymakers forget is that seeking asylum is a legal right, and the law makes no distinctions around the method of entry. Both international agreements and domestic statutes lay out the tenet that people fleeing persecution and violence will not be sent back to danger, and anyone who reaches the United States and makes such a claim is entitled to their day in court. By turning these Haitians away or expelling them under its flimsy Title 42 order, which calls for rapid, preemptive expulsion, the administration is defying the law.

No one is pretending this isn’t an intractable logistical issue. There’s no quick, easy way for the administration to process and adjudicate the cases of tens of thousands of people. But the federal government is supposed to meet big challenges headon, not wash its hands of its responsibilities.

Rather than trying to chase the challenge away, the Biden folks should take concrete steps to ease the pressure. Once public comments close next month, it should commit to moving quickly on a proposed rule to allow asylum officers to directly grant that status in defensive applications. It should double down on hiring immigration judges and cut away at Trump-era precedents that made the courts both less fair and less efficient.

For those who lose their cases, the system dictates that they be removed. But slamming shut the courthouse doors is building a wall by another means.