Immigration advocates and progressives are raising alarms over reports that the Biden administration plans to use executive action to restrict asylum applications along the U.S.-Mexico border.
The reports, sourced to unnamed administration officials by a handful of media outlets, come as advocates were telegraphing a thaw in their relations with the White House after butting heads over the failed bipartisan Senate border policy bill.
In essence, administration officials referenced in the reports are floating the idea that the Biden administration would crack down on asylum seekers at the U.S.-Mexico border, citing the law used by former President Trump for actions such as his so-called “Muslim ban.”
“The executive actions the Biden administration is considering harken back to some of the darkest chapters of the Trump presidency — leaning on an authority his predecessor used to advance unapologetically racist, Islamophobic and blatantly unlawful attacks on immigrants and asylum seekers,” said Azadeh Erfani, senior policy analyst at the National Immigrant Justice Center.
“President Biden rightly revoked these extremist policies upon taking office. If he moves forward with the changes reported, he’d be embracing them.”
According to the reports, the executive order would use presidential authority to “suspend the entry” of foreign nationals whose presence is not in the best interest of the country.
The Biden administration has invoked that authority 16 times, mostly in connection to sanctions against countries such as Russia and Myanmar, and to prevent entry of people at high risk of spreading disease.
Applying the 1950s-vintage law to migrants claiming asylum at the border faces several challenges.
The concept of allowing “entry” to foreign nationals was replaced in the 1990s by the idea of “admission,” a distinction that could create a legal headache when applied to foreign nationals who cross the border without prior authorization and then exercise their right to asylum upon turning themselves over to Border Patrol officers.
The Supreme Court has largely sided with an ample interpretation of the president’s power to exclude foreign nationals under the statute, known as 212(f), codified as 8 USC Section 1182(f).
In 1993, justices found in favor of former President George H.W. Bush administration’s interdiction program to prevent Haitians from disembarking their boats in Florida, and in 2018 the Supreme Court allowed Trump’s “travel ban” to remain in place and remanded the case to lower courts.
But the power is not unlimited and restricted by other immigration laws, including those implemented to prevent discrimination, according to a Congressional Research Service (CRS) report updated on Wednesday.
“More generally, courts have explained that the President’s authority under Section 1182(f) is not unbounded and may not be used to supersede or conflict with other provisions of the INA [Immigration and Nationality Act],” reads the report, noting that one court did find the president could limit entry of foreign nationals if detention space was lacking.
“In sum, while courts uniformly recognize that Section 1182(f) conveys broad authority to the President to restrict the entry of aliens into the United States, the judicial branch continues to grapple with questions over Section 1182(f)’s application and the degree that domestic interests may inform the President’s decision to invoke that authority,” wrote CRS investigators Kelsey Santamaria, Calvin Gibson and Hillel Smith.
Legal challenges notwithstanding, human rights advocates say the reported proposal follows a blunt, Trump-like logic.
“The clear intention behind President Biden’s newest proposed deterrence policy is to create so much fear, pain, and suffering at the border that vulnerable communities abandon their right to seek asylum and instead return to face the violence they are fleeing,” said Amy Fischer, director of refugee and migrant rights with Amnesty International USA.
“These proposed changes by the Biden Administration would undoubtedly violate both U.S. and international human rights law that establish people may seek asylum regardless of whether they cross at a port of entry or between ports of entry. A similar policy was found to be illegal when it was attempted during the Trump Administration.”
And progressives are dismayed over the prospect, which pours cold water on what they saw as a leftward turn in the border conversation after the failure of the Senate deal and the election of incoming Rep. Tom Suozzi (D-N.Y.).
Congressional Progressive Caucus Chair Rep. Pramila Jayapal (D-Wash.) on Thursday posted on X, formerly Twitter, that executive action to reduce asylum would be “a mistake.”
“Cruel enforcement-only policies have been tried for 30 years and simply do not work,” wrote Jayapal.
Rep. Jesús “Chuy” García (D-Ill.) echoed that sentiment, writing that the proposal “is Trump policy.”
“People seek asylum because they fear for their lives. President Biden would be making a grave mistake if he moves forward with this policy.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.) wrote that “the mere suggestion is outrageous and the President should refuse to sign it,” and quipped, “doing Trump impressions isn’t how we beat Trump.”
The White House and the Department of Homeland Security (DHS) have not denied the proposal is under consideration, though on previous occasions Biden administration officials have warned that many proposals are thrown on the table but only a few are adopted.
“The Administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system. Congressional Republicans chose to put partisan politics ahead of our national security, rejected what border agents have said they need, and then gave themselves a two-week vacation,” White House spokesperson Angelo Fernández Hernández said Thursday.
“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected,” he added.
Still, the leaks to the press come on the heels of Suozzi’s win, which seemed to open a politically viable door for Democrats to talk tough on the border while publicly calling for a more expedient immigration process.
Following the New York Democrat’s victory earlier this month, progressives and immigration advocates signaled they’d be willing to swallow rhetoric they find objectionable — Suozzi didn’t push back on the term “invasion” to describe migrant arrivals — if the priorities of the defunct Senate deal were overridden or paired with an aggressive expansion of paths to entry and legalization for undocumented immigrants.
They cited Republican opposition to the Senate deal, which leaned much more on the border security side than on granting papers to foreign nationals, as a show that the GOP would never acknowledge any Biden action on the border, no matter how hawkish.
On Thursday, Speaker Mike Johnson (R-La.) scoffed at the potential asylum crackdown, calling the move “election year gimmicks” and demanding a return to the Trump-era “Remain in Mexico,” a policy that the Biden administration only reluctantly implemented temporarily under court orders.
There is one element immigration advocates, Johnson and Biden all agree on: The only viable option left to address migration is executive order.
On Wednesday, immigration advocacy groups released two separate but similar executive action proposals they say would benefit migrants while returning order to the process.
But in light of Wednesday’s reports, advocates say Biden’s not listening.
“President Biden has been presented time and time again with policy solutions, including restoring access to asylum at ports, increasing port processing capacity, addressing United States Citizenship and Immigration Services and court backlogs, and investing in whole of government strategies to resettle and support asylum seekers,” said Fischer.
“Instead of looking forward to these solutions, President Biden continues to only look back into Trump’s playbook of cruelty.”