President Joe Biden is expected to sign an executive order on Tuesday allowing him to temporarily close the U.S. border with Mexico to migrants as the number of border crossings increases, a move that would suspend longstanding protections for asylum seekers in the United States.
Biden’s senior aides have told members of Congress in recent days that they expect him to sign the order at the White House along with South Texas mayors, according to several people familiar with the plans.
The restrictions would come into effect once the number of illegal crossings per day exceeds 2,500, according to several people briefed on the order. Daily totals already exceed that number, meaning Biden’s executive order could go into effect immediately.
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The border would reopen to asylum seekers if the number of crossings remains below 1,500 for a certain period, the people said. They requested anonymity because the executive order has not been officially announced.
The order would be the most restrictive border policy instituted by Biden, or any other modern Democrat, and reflects a 2018 effort by President Donald Trump to curb migration that was attacked by Democrats and blocked by federal courts.
While the executive branch’s actions will almost certainly face legal challenges, Biden is under intense political pressure to tackle illegal immigration, one of voters’ top concerns ahead of November’s presidential election.
The decision shows how immigration policy has shifted sharply to the right over the course of Biden’s presidency. Polls show support — even within the president’s party — increasing for border measures that Democrats once denounced and that Trump favored.
Typically, migrants seeking asylum are released to the United States to await court appearances where they can argue their cases. But a huge backlog means it could take years for these issues to be addressed.
Supporters of the order say it will help relieve pressure on an overwhelmed system. However, there would be limited exceptions, including minors crossing the border alone, people experiencing medical emergencies and victims of human trafficking, according to several officials briefed on the order.
Migrants could apply for other forms of protection besides asylum, but it is already significantly more difficult to qualify for these programs. And the administration is designing new screening processes that will make it even harder to break the bar.
The number of people crossing the border illegally has fallen sharply in recent months after reaching a record high in December, when about 10,000 people a day entered the United States.
Biden administration officials panicked over the numbers in December and urged Mexico to do more to curb migration. Mexican officials have since used charter flights and buses to move migrants deeper south and away from the United States.
On Sunday, border agents apprehended more than 3,500 people crossing the border without authorization, consistent with trends in recent weeks, according to a person with knowledge of the data.
The executive action will likely mirror a measure in a failed bipartisan bill this year that contained some of the most significant border security restrictions Congress had considered in years. The bill would have provided billions in funding for the border, including hiring thousands of asylum officers to process claims.
But Republicans defeated the bill in February, saying it wasn’t strong enough. Many of them, egged on by Trump, were reluctant to hand Biden a legislative victory in an election year. The president’s aides hope the executive order will give him an opportunity to pressure Republicans over their decision to kill the bipartisan bill, which would have provided billions of dollars to the Department of Homeland Security.
“While Republicans in Congress chose to stand in the way of additional border enforcement, President Biden will not stop fighting to deliver the resources border and immigration personnel need to secure our border,” said Angelo Fernández Hernández, a White House spokesperson, in a statement. Monday. He did not confirm the plans, but said the government was “exploring a range of policy options, and we remain committed to taking action to tackle our broken immigration system.”
Government officials have said that executive action was not their preference and that they believe any order would be legally challenged.
“Legislation is what is needed,” Homeland Security Secretary Alejandro Mayorkas said last month.
“The actions of the executive branch will be challenged,” he added. “I have confidence in that. And then the question arises: what is the outcome of that procedure? Legislation is a surer solution.”
The American Civil Liberties Union led the charge against the Trump administration’s attempt to block asylum in 2018, which led to the policy being struck down in federal courts. The group has said it is prepared to challenge any order restricting asylum at the border.
“We will need to review the EO before deciding whether to file a lawsuit, but any policy that effectively cuts off protections for desperate migrants would raise serious legal challenges, as was the case when the Trump administration tried to end asylum,” said Lee Gelernt , an attorney with the ACLU who led the challenge against many of Trump’s policies.
While Republicans have long attacked Democrats over border security, Biden has also faced calls from members of his party for stronger enforcement in recent years.
Rep. Tom Suozzi, D-N.Y., who won a special House election this year in part by calling for tougher immigration measures, sent a letter to Biden last month encouraging him to issue an executive order that would limit asylum.
“I think it’s very, very important, not just for Democrats or for political purposes, but for America,” Suozzi said in an interview. “This is something that people are very concerned about.”
Rep. Henry Cuellar, D-Texas, who has previously called on the president to strengthen enforcement at the border, said he had been briefed on the order.
“While the warrant has yet to be released, I stand by the details provided to me thus far,” he said.
Still, there are political risks associated with issuing the order. Republicans have wondered in recent days why Biden didn’t take unilateral action on the border sooner. In January, he told reporters that he had done “everything I could do” at the border and that he needed help from Congress.
“The American people know better,” Speaker Mike Johnson, R-La., wrote in a social media post Monday.
In a sign of how much politics in this area has changed, Biden as a candidate in 2019 denounced Trump’s policies during a debate.
“This is the first president in the history of the United States of America that anyone seeking asylum has to do so in another country,” Biden said at the time. “That has never happened before.
“You come to the United States and make your case,” he added. “This is how you seek asylum, based on the following premise: why I deserve it under American law.”
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