President Joe Biden on Tuesday issued long-awaited executive actions to control migrants seeking asylum, setting the stage for the closure of the U.S. border with Mexico between ports of entry at midnight.
The action and the Biden administration’s accompanying rule allow the president to close the border between ports of entry while allowing an average of 2,500 crossings per day over a seven-day period. According to government officials, that threshold has already been reached last week.
The announcement represents an aggressive effort by Biden to strengthen his position on the border ahead of the November election. Biden is expected to deliver a speech on Tuesday to highlight his unilateral efforts to resolve the crisis, while Republicans in Congress – at the behest of Donald Trump – halted efforts to pass bipartisan border legislation earlier this year discontinued.
The president will be joined later Tuesday by members of Congress and local and state leaders from border cities and states in an effort to project consensus and political strength on an issue that has long dogged him politically. This is expected to spark a backlash from progressives and immigration advocates, who plan to speak out against the measure Tuesday afternoon.
“The goal here is to secure our border while maintaining legal immigration that is consistent with our values as a nation,” a senior administration official said ahead of the announcement to reporters. “There are several differences between the actions we are taking today and Trump-era policies. The Trump administration attacked nearly every facet of the immigration system and did so in a shameful and inhumane manner. … The actions we take today will only apply in times of major encounters.”
The new rule from the Departments of Homeland Security and Justice will limit asylum during periods of high numbers of border crossings, allowing the Biden administration to immediately remove some migrants from the U.S. within hours or days. These migrants would face a five-year ban from re-entering the country and possible criminal charges.
If the daily average of 2,500 is exceeded over the course of a week, the president will have the authority to close the border between ports of entry. Once the lockdown is in effect, DHS Secretary Alejandro Mayorkas can reopen the border once the average number of border crossings falls below 1,500 for seven consecutive days. Thanks to that determination, the border can reopen fourteen days later.
There will still be some exceptions, including for unaccompanied children, some victims of human trafficking, migrants facing acute medical emergencies or immediate threats to their safety. Migrants who also have an appointment at an inland port via the Customs and Border Protection smartphone app will still be processed. The Biden administration is currently processing about 1,500 migrants per day at official ports, and the president’s actions will not affect his humanitarian parole order for certain migrants.
The new actions aim to limit asylum by making a number of changes to the president’s Title 8 authority, existing procedures that allow the government to remove people from the country who are unable to find a legal basis lay. People who cross the border unlawfully are not eligible for asylum if there are no compelling circumstances, and are only referred to an asylum officer under specific circumstances. And migrants screened by an asylum officer will also face higher standards than previously used to determine fear or intent to seek asylum.
Senior administration officials on Tuesday called the action a last resort after Congress failed to pass the bipartisan border deal earlier this year. They continued to warn that the president is limited by funding and resources approved by lawmakers.
“We have repeatedly asked Congress for additional emergency funding to allow us to expand and expand our ability to deliver impacts at the border. And unfortunately, Congress has not acted on these requests,” said a second senior administration official.
The actions Biden announced Tuesday are expected to face legal challenges, just as the Trump administration did when it relied on the same presidential authority to make sweeping changes to the immigration system. The president’s officials said they had included “important humanitarian and legal changes” in the implementation of the authority. But they also said they are prepared to defend the policy changes in court.
