WASHINGTON — President Joe Biden on Tuesday issued an executive order that will allow him to partially suspend asylum requests at the U.S.-Mexico border when daily unauthorized crossings reach a threshold of 2,500 migrants.
“I’ve come here today to do what Republicans in Congress refuse to do, take the necessary steps to secure our border,” Biden said. “This action will help us gain control of our border.”
The 2,500-crossing threshold would likely be triggered immediately, a senior administration official said on a Tuesday call with reporters previewing the executive order. The order would terminate once unauthorized crossings drop. It only applies to the southern border, including the southwest land border and southern coastal borders.
Biden was joined by lawmakers, Homeland Security Secretary Alejandro Mayorkas, Democratic New Mexico Gov. Michelle Lujan Grisham and local leaders from Texas cities.
Biden added that in the coming weeks he’ll talk more about “how we can make our immigration system more fair and just.”
Border changes
The White House has been dealing with the largest number of migrant encounters at the southern border in 20 years. In addition, presumptive Republican presidential nominee Donald Trump has made it a top issue for voters. Biden’s move marks his most drastic crackdown on immigration during his administration.
The order makes three changes to current asylum law under Title 8 of the Immigration and Nationality Act when that threshold of 2,500 migrants is reached, a senior administration official said. The first is that a noncitizen who crosses the border without authorization will be ineligible for asylum.
The second is any noncitizen who crosses the border while the order is in effect and is processed for removal will only be referred to a credible fear interview with an asylum officer “if they manifest or express a fear of return to their country or country of removal, a fear of persecution or torture, or an intention to apply for asylum,” a senior administration official said.
And the third is raising the standard for credible fear interviews to a “reasonable probability of persecution or torture standard,” which is “a new, substantially higher standard than is currently being applied at the border,” a senior administration official said.
“Taken together, these measures will significantly increase the speed and the scope of consequences for those who cross unlawfully or without authorization and allow the departments to more quickly remove individuals who do not establish a legal basis to remain in the United States,” a senior administration official said.
Trump comparisons
The order, versions of which were reported ahead of the White House announcement, drew criticism from both parties.
Republican leaders said the order didn’t go far enough. House Speaker Mike Johnson, R-La., called it a “weak executive order.” Senate Minority Leader Mitch McConnell, R-Ky., called the order “too little, too late.”
Progressive Democrats, meanwhile, slammed it as a partial ban on asylum, and advocacy groups blasted the order for betraying Biden’s campaign rhetoric.
Biden tried to frame the order as different from the immigration policies of the Trump administration by stating he would not separate children from their parents, bar people from the U.S. because of their religion or invoke white supremacist language that refers to immigrants as “poisoning the blood of a country” – all actions taken by Trump.
“I believe that immigration has always been a lifeblood of America, we’re constantly renewed by an infusion of people and new talent,” he said. “So I will never demonize immigrants.”
A senior administration official also argued that the executive order is different from the Trump administration’s immigration policies because the order will “only apply during times of high encounters.”
Biden, who campaigned in 2020 on protecting asylum law, is relying on the same presidential authority—Section 212(f) of the Immigration Nationality Act—that the Trump administration used to justify several immigration-related restrictions, such as the travel ban from predominantly Muslim countries.
The Biden order would also allow border officials to return certain individuals who cross the border without authorization back to Mexico – nationals from Cuba, Nicaragua, Haiti and Venezuela.
There will be exemptions for lawful permanent residents, unaccompanied minors, people with an “acute medical emergency” or an extreme threat to life or safety, and for victims of human trafficking, a senior administration official said.
A senior administration official said this temporary order would go away when there are seven consecutive days when daily encounters are less than 1,500 migrants between ports of entry. Once that is established, the order expires in 14 calendar days.
The Biden administration began to consider the executive order after an immigration deal the White House and Senate brokered earlier this year fell apart after Trump came out against it and Republicans quickly fell in line to oppose it.
Among other things, that deal would have given Biden the authority to shut down any asylum requests once encounters reached 5,000 people in a week or 8,500 in a day.
A senior administration official said the 2,500 threshold was chosen to be similar to the deal stuck in the Senate.
“To Joe Biden, the safety of American families should always come first,” senior deputy press secretary Andrew Bates said in a memo.
“That’s why today, the President is announcing new historic executive actions to bar migrants who cross our Southern border unlawfully from receiving asylum. Because of President Biden’s leadership, law enforcement will gain new capabilities that congressional Republicans cannot block.”
Senate Majority Leader Chuck Schumer, D-N.Y., tried in late May to bring up the bipartisan border bill in the Senate but it failed for a second time during a procedural vote.
The lead Democratic negotiator on that bipartisan deal, Sen. Chris Murphy, D-Conn., expressed skepticism Tuesday that the Biden administration could move forward with its executive order.
“I am sympathetic to the position the administration is in, but I am skeptical the executive branch has the legal authority to shut down asylum processing between ports of entry on its own,” Murphy said. “Meaningful asylum reform requires a bipartisan solution in Congress.”
‘Immediate litigation’
Section 212(f) of the Immigration Nationality Act allows the president “to suspend the entry of all aliens or any class of aliens,” if the president “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”
Since the 1980s, administrations, including Biden’s, have evoked this code in certain circumstances, such as in 2022 for any individuals connected with Russia amid its war with Ukraine.
In general, the 212(f) code has been narrowly applied, said Amy Grenier, policy and practice counsel for the American Immigration Lawyers Association. She added that she expects Tuesday’s executive order to be legally challenged.
“There will be pretty much immediate litigation around whether or not that conflicts with the part of the statute that guarantees the ability to apply for asylum,” Grenier said.
A senior administration official said the White House expects those legal challenges.
“We are prepared for any litigation on this rule,” a senior administration official said.
The American Civil Liberties Union, which was at the forefront of many legal cases against the Trump administration’s immigration policies that restricted asylum, has already stated it plans to sue the Biden administration over its executive order.
“We intend to challenge this order in court. It was illegal when Trump did it, and it is no less illegal now,” Lee Gelernt, the deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement.
The executive order is a stark reversal of the president’s campaign promise to “restore our moral standing in the world and our historic role as a safe haven for refugees and asylum-seekers,” as Biden said in his 2020 acceptance speech at the virtual Democratic National Convention.
“This new executive order that we’re expecting, (is) unfortunately part of the trend of the Biden administration adopting many of the policies that were enacted under the Trump administration that are rooted in xenophobia, and a disregard for our international obligations to provide asylum,” Kate Mahoney, a senior staff attorney at Immigrant Legal Resource Center, said.
Mahoney said applying a numbers-based cap on asylum will only harm the most vulnerable of asylum seekers and will do little to deter people from coming to the southern border.
“This kind of blunt instrument will just turn away everyone,” she said. “It’s not doing anything to better identify people who have strong claims who will truly suffer harm in their home country.”
A growing share of migrants at the southern border are families, according to Pew Research Center, where as of December families make up 41% and unaccompanied children make up 5%. The rest, 54%, are single adults.
Progressives disappointed
Democrats expressed their disappointment in the new executive order.
Rep. Pramila Jayapal, D-Wash., who chairs the Congressional Progressive Caucus and is the top Democrat on a House Judiciary Committee panel on immigration policy, said in a statement that Tuesday’s announcement was “extremely disappointing.”
“This attempt to shut down the border to asylum seekers uses the same section of U.S. immigration laws that convicted felon Donald Trump used to implement the Muslim Ban and in attempts to cut off all access to asylum,” she said.
“While there are some differences from Trump’s actions, the reality is that this utilizes the same failed enforcement-only approach, penalizes asylum seekers, and furthers a false narrative that these actions will ‘fix’ the border.”
Biden addressed those criticisms and said “be patient.”
“Doing nothing is not an option,” Biden said.
However, some Democrats in border states, including Sen. Mark Kelly, D-Ariz., welcomed the executive order. Kelly said in a statement that more needs to be done in Congress to address immigration.
“In Arizona, where Border Patrol agents and nonprofits are often overwhelmed by daily migrant crossings, this new effort will support their crucial work and help relieve border communities from the burden of our broken immigration system,” he said.
Several Senate Republicans held a Tuesday press conference where Sen. John Cornyn, R-Texas, accused the president of “not being serious” about the southern border for only issuing the order three years into his first term.
Sen. Lindsey Graham, R-S.C., said that the only way to curb migration at the southern border is to remove hundreds of thousands of noncitizens from the U.S. – something that Trump has promised to do should he win a second term.
“The only policy changes that will work is to have mass deportations,” Graham said.
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