President Biden took long-expected executive action Tuesday that will turn away migrants seeking asylum who cross the southern border illegally at times when there is a high volume of daily encounters.
The order will be in effect when the seven-day average of daily border crossings exceeds 2,500 between ports of entry, senior administration officials said, meaning it will go into effect immediately. Biden issued a proclamation announcing the change under the Immigration and Nationality Act.
Senior administration officials framed the order as a response to congressional inaction on immigration after a bipartisan framework in the Senate was blocked by Republicans for a second time.
Administration officials walked a tightrope announcing the order, a forceful but targeted shift on asylum rights — one that administration officials said is not comparable to the Trump administration’s system-wide crackdowns.
“There are several differences between the actions that we are taking today and Trump-era policies. The Trump administration attacked almost every facet of the immigration system and did so in a shameful and inhumane way,” a senior administration official told reporters on a call Monday.
But the order, which comes during an election year when immigration is set to play a key role, is almost certain to face legal challenges, as well as criticism from some on the left who have argued it echoes Trump’s moves against the asylum system.
What the order does
The core of the new policy is the ability to refuse entry to most foreign nationals who cross the border without prior authorization.
For purposes of immigration law, a foreign national enters the United States when they are lawfully admitted by a U.S. official; the new policy will prevent border officials from admitting new asylum seekers while it is active.
The order, an interim final rule released by Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland, will kick in when the seven-day average of daily encounters at the southwest border and the southern coastal borders exceeds 2,500.
When it does, U.S. border officials will stop implementing credible fear interviews for asylum claims and work to quickly expel foreign nationals who’ve crossed the border between ports of entry.
Migrants who are expelled under the order will receive a minimum five-year bar on reentry to the United States and potentially be criminally prosecuted.
According to administration officials, Mexico will receive nationals of Cuba, Haiti, Nicaragua and Venezuela, as well as its own nationals, in expedited deportations.
It’s unclear whether the Biden administration will have enough resources to quickly expel or detain migrants barred from asylum, raising the possibility that more migrants will be released to the interior with orders of deportation rather than asylum claims, limiting their ability to apply for work permits.
Officials said the Biden administration will enhance its capabilities to return nationals of other countries, including extracontinental migrants from places such as China.
“We have been working tirelessly both in the region and throughout the world to enhance to both restrict the routes into the hemisphere for extra-hemispheric migrants … and we’ve also been working with governments all over the world to enhance our ability to repatriate individuals to countries that have historically been challenging,” an administration official told reporters.
The asylum restrictions will have exceptions.
For instance, they will not apply to unaccompanied minors, and officials will still be able to conduct credible interviews with migrants who manifest a fear of returning to their country because of persecution or potential torture situations.
According to administration officials, the new policy will adhere to U.S. international obligations on treatment of asylum seekers and refugees, though that assessment will almost inevitably be challenged in court.
Officials also said the asylum crackdown will be bolstered by several enforcement measures targeting smuggling networks and organizations that profit from migration in the Western Hemisphere.
The measures include revoking U.S. visas for government officials from places including Nicaragua, as well as top corporate officials from companies that provide services like transportation to migrants.
And officials said the departments of Justice and Homeland Security will work in tandem to more quickly resolve the immigration cases of recent arrivals, looking to swiftly expel or deport people without a valid asylum claim.
Order will go into effect immediately
Senior administration officials said the measure would take effect Tuesday because the seven-day average of daily encounters at the border is more than 2,500, despite the fact that illegal crossings have been on the decline in recent months.
One official said the 2,500 number was determined based on similar numbers negotiated by Republicans and Democrats in the Senate as part of a border security deal that failed to pass the chamber.
“The goal here is to secure our border while preserving our values as a nation,” one official said.
While the measure would be lifted once the seven-day average of daily encounters drops below 1,500, that threshold could prove difficult to meet. The last time the average of daily encounters was below 1,500 was in July 2020, during the COVID-19 pandemic, according to The Associated Press.
White House seeks to blame Republicans
The timing of the order comes in the heart of an election year, where polling has consistently shown voters trust former President Trump — the presumptive GOP nominee — more than Biden on the issue of immigration and border security.
Senior administration officials on Tuesday did not explicitly tie the timing of the order to the election, but they argued the measure was a result of congressional Republicans’ inaction.
“If Congress refuses to act, and if congressional Republicans refuse to act, the president is prepared to do so,” one official told reporters.
The president and White House officials previously said it was up to Congress to enact changes at the border and suggested Biden’s hands were tied on the issues.
The president and his team lobbied hard for a bipartisan bill in the Senate that would have provided funding for thousands of additional Border Patrol agents, investments in technology to catch fentanyl and target drug traffickers and the addition of asylum officers and immigration officers who could help relieve the backlog of asylum cases.
But Republicans in the Senate blocked passage of that bill twice.
Trump had urged Republicans to oppose the legislation, suggesting it could give Biden an election year win.
“For 3 years, America’s border security has been devastated by congressional Republican opposition to the law enforcement resources that President Biden has sought,” deputy White House press secretary Andrew Bates wrote in a memo shared with reporters.
“For 3 years, Joe Biden has led on border security and congressional Republicans have obstructed it — all in the name of politics,” Bates added.
Republicans have chastised Biden for waiting to take executive action on the border and argued Tuesday’s measure is too little, too late.