President Biden is expected to sign an executive order Tuesday closing the U.S. border with Mexico between official ports of entry while crossings are high, a change designed to make it harder for people who cross illegally to seek asylum.
Under a new interim rule, the president can put the border restrictions into effect when average border arrests surpass 2,500 migrants for seven days in a row — as is the case today. The rule also raises the legal bar for an asylum claim at the border from reasonable possibility they will face torture at home to reasonable probability it will happen.
The heightened restrictions would end two weeks after the number of crossers stopped at the border dips below 1,500 for more than a week. Data shows that for most of the last nine years, border stops have not fallen below 1,500 per day.
“These measures will significantly increase the speed and the scope of consequences for those who cross unlawfully” and will “allow the departments to more quickly remove individuals who do not establish a legal basis to remain in the United States,” said one of several senior administration officials who briefed reporters on the condition of anonymity.
The restrictions would not apply to those who enter at official ports of entry or use other legal means, including those who use a relatively new mobile app to request an appointment. It would also exempt certain groups, including unaccompanied children, victims of severe forms of trafficking and people with dire medical emergencies or extreme threats to life and safety.
Administration officials defended their efforts to secure the border, saying they have already returned more migrants in the past 12 months than in any year since 2010. They also sought to blame Republicans for Congress’ failure to pass a bipartisan bill that would have given the administration more money and authority to control the border.
Officials conceded the president’s executive action, which is likely to face legal challenges, is essentially a stopgap.
“There is no lasting solution to the challenges we are facing without Congress doing its job,” one official said.
While Mexico has agreed to take migrants from several Latin American countries, the administration is facing an increase in arrivals from other continents, including Asia. Officials said they were working to strengthen deals to fly people to India, China and other countries of origin, but said it remains a challenge.
Officials have faced a barrage from critics on the right, who blame Biden for what they call an out-of-control border, and on the left, who accuse him of replicating xenophobic policies advanced by former President Trump. Officials took pains to differentiate their policies from Trump’s most well-known practices, including the attempts to ban the entry of people from Muslim-majority countries and to separate children from their families.
“We will not separate children from their families,” said one official. “It is not only inhumane, it’s grossly ineffective.”
Seeking asylum, regardless of how someone arrives on U.S. soil, is a right under the federal Immigration and Nationality Act and international law. That issue proved problematic for the Trump administration’s efforts to limit border crossings, and it could trip up Biden’s latest order as well.
Amy Fischer, Director of Refugee and Migrant Rights at Amnesty International USA, said the expected executive action “plays into false narratives about the invasions at the border and advances a policy grounded in white supremacist ideas at the expense of people in search of safety in the U.S.”
“President Biden’s action sets a dangerous international precedent as a first-of-its-kind numerical cap on asylum, limiting the number of people who can claim asylum in the U.S. and effectively shutting down the U.S.-Mexico border, using the same legal authority that the Trump administration used to implement the dangerous and xenophobic Muslim and African travel bans,” Fischer said.
Immigration has been one of Biden’s thorniest problems, practically and politically. He campaigned in large part on reversing Trump’s most hardline policies and rhetoric, but after Biden assumed office, border crossings and arrests rose dramatically.
Polls show many voters rate immigration and the border as a top issue, often alongside the economy, character, democracy and abortion. It’s also the area where they are most likely to rate Trump ahead of Biden, according to an ABC News poll released last month showing 47% of Americans trust Trump more on the issue, compared with 30% who trust Biden more.
