President Joe Biden on Tuesday announced plans to impose immediate and significant restrictions on migrants seeking asylum at the U.S.-Mexico border as the White House seeks to address immigration as a political concern ahead of the November elections.
The White House provided details of the long-awaited presidential proclamation signed by Biden, which would prevent migrants from receiving asylum when U.S. officials determine that the southern border is overwhelmed.
The Democratic president has been considering unilateral action for months, particularly after a bipartisan border security agreement in Congress collapsed, a deal most Republican lawmakers rejected at the urging of Donald Trump, the presumptive GOP presidential nominee.
The order will take effect when the number of border encounters between ports of entry reaches 2,500 per day, according to senior administration officials.
This means Biden’s order should take immediate effect, as current daily averages are higher. The restrictions will remain in place until two weeks after the daily encounter numbers fall to or below 1,500 per day between ports of entry, based on a seven-day average.
Under this order, migrants arriving at the border who do not claim fear of returning to their home countries will face immediate expulsion from the United States, often within days or hours. Such migrants could be subject to penalties including a five-year ban on reentry and potential criminal charges.
However, migrants expressing fear or intention to seek asylum will undergo screening by a U.S. asylum officer, though to a stricter standard than currently employed. If they pass the screening, they may pursue more limited forms of humanitarian protection, such as under the U.N. Convention Against Torture.
The details of Biden’s order were provided by four senior administration officials who spoke on condition of anonymity to reporters. The directive comes as encounters with migrants at the border have been consistently decreasing since December.
Despite this trend, senior administration officials argue that the numbers remain too high and could rise with improved weather, which traditionally leads to increased encounters.
Many questions and challenges remain about the implementation of Biden’s new directive.
For example, the Biden administration already has an agreement with Mexico to accept up to 30,000 citizens a month from Cuba, Haiti, Nicaragua, and Venezuela once they are denied entry to the U.S., and senior administration officials say this will continue under the new order.
However, it is uncertain what will happen to nationals of other countries denied entry under Biden’s directive.
Senior officials also acknowledged that the administration’s goal of swift deportations is hindered by inadequate funding from Congress.
The administration also faces legal constraints on detaining migrant families, although officials said they would continue to comply with these obligations.
Biden is invoking legal authority under Section 212(f) of the Immigration and Nationality Act, which allows a president to restrict entry for certain migrants if it is deemed detrimental to the national interest. Senior officials expressed confidence in their ability to implement Biden’s order, despite threats from prominent legal groups to sue the administration over the directive.
The senior administration officials emphasized that Biden’s proposal differs significantly from that of Trump, who also used provisions of the Immigration and Nationality Act, including his 2017 order barring citizens of Muslim-majority nations and his 2018 crackdown on asylum.
For instance, Biden’s order exempts several groups of migrants for humanitarian reasons, including victims of human trafficking, unaccompanied minors, and those with serious medical emergencies.
The directive also exempts migrants who arrive in an orderly manner, such as those who make appointments with border officials at ports of entry using the CBP One app from U.S. Customs and Border Protection. Approximately 1,450 appointments are made daily using the app, which launched last year.
The average daily arrests for illegal crossings from Mexico were last below 2,500 in January 2021, the month Biden took office. The last time border encounters dipped to 1,500 a day was in July 2020, during the peak of the COVID-19 pandemic.
Congressional Republicans, who nearly all rejected a bipartisan border proposal in the Senate earlier this year, dismissed Biden’s order as a “political stunt” aimed at demonstrating tougher immigration enforcement ahead of the election.
“He spent all this time trying to convince us that he couldn’t possibly fix the mess,” Republican House Speaker Mike Johnson said at a news conference. “Remember that he engineered it.”
