President Joe Biden on Tuesday issued an executive order to temporarily suspend the processing of most asylum claims at the southern U.S. border when the seven-day average of unauthorized crossings exceeds 2,500.
The president said he's taking action to "gain control" of the border, after years of high number of irregular crossings.
The measure will take effect immediately, according to the rules distributed by the Department of Homeland Security.
Under this order:
- Migrants who cross without authorization — absent exceptional circumstances — would not be eligible for asylum, and subject to expdited removal.
- The new rule raises the threshold to grant an asylum hearing based on a credible fear claim, that is when a migrant manifests fear of prosecution or torture in their native country or country of removal.
The restrictions will remain in place until 14 days after the seven-day average of illegal crossings drops below 1,500. The measures will go back into effect once the number reaches 2,500.
Beyond restrictions, this new rule allows permanent residents, unaccompanied children, victims of a severe form of trafficking, and other noncitizens with a valid visa or other lawful permission to enter the United States.
Biden, who is running for reelection and has been facing criticism for the high number of migrants entering the United States, is relying on section 212(f) of the Immigration and Nationality Act to implement these restrictions. This provision has been previously invoked on the grounds of national security.
“Frankly, I would have preferred to address this issue through bipartisan legislation because that’s the only way to actually get the kind of system we have now that is broken, fixed,” Biden said from the White House, flanked by several mayors from border cities and Democratic lawmakers.
This is the same law former President Donald Trump — who is challenging Biden in this year's election— used in 2017 to ban immigration from several majority-Muslim countries, and in 2018 to suspend the right to petition asylum for migrants crossing the border illegally.
Homeland Security Secretary Alejandro Mayorkas in a statement said: "This executive action is yet another step the [Biden] administration has taken within its existing authorities to deter irregular migration," he said.
Several immigrant rights organizations critized the Biden administration for enacting these measures.
On Tuesday, the American Civil Liberties Union said it intends to challenge in court this order.
"It was illegal when Trump did it, and it is no less illegal now," said ina statement Lee Gelernt, deputy director of ACLU's Immigrants Rights Project.
Amy Fischer, the Director of Refugee and Migrant Rights at Amnesty International USA, said in a statement that Biden’s actions “set a dangerous international precedent.”
“It’s deeply disappointing to see President Biden so hellbent on dismantling human rights for people seeking asylum and implementing policies that are plainly illegal under international and refugee law,” Fischer said.
Biden said he was "doing what I can on my own" to control flow in migrants in the U.S. Southern border. He said the current immigration system is broken.
Migrants hailing from outside the Western Hemisphere will be subject to the same provisions announced Tuesday.
In remarks from the White House, Biden said the U.S. will continue to work with Mexico to curtail irregular immigration, and he touted avenues like the CBP One mobile app in which migrants can apply for an asylym interview from abroad without crossing the border illegally.
The president described it as a "safe and orderly manner or pursue another lawful pathway" to enter the country.
Using the Immigration and Nationality Act
The section 212(f) is a provision from the Immigration and Nationality Act (1952) which empowers the president to “suspend” or restrict the entry of migrants into the country when deemed necessary.
Bill Hing, a professor of law and migration studies at the University of San Francisco, said there are many laws that prevent certain immigrants from coming to the country, like those who are members of a terrorist organization.
However, section 212(f) is more encompassing.
“(It’s) much broader,” Hing said. “It just says that the President has the power through a proclamation to restrict the entry of people who are coming to the United States, in the opinion of the President, who are detrimental to the interest of the United States.”
Hing called the language of the law “ambiguous.”
The section has been used by Democratic and Republican presidents in the past to curtail illegal migration.
For instance, in 1981 President Ronald Reagan invoked it to restrict Haitians from coming into the U.S. He also used it to suspend the entry of Cubans, Nicaraguans part of the Sandinista National Liberation Front, and Panamanians officials under the dictatorship of Manuel Antonio Noriega.
Since then, section 212(f) has been used to block certain citizens from several countries, including China, Iran, Venezuela, Myanmar, Nigeria, Sudan, and Tanzania.
But most notoriously, it was invoked by President Donald Trump in January 2017, and was dubbed a “Muslim ban.” Trump’s executive order indefinitely ended the resettlement of Syrian refugees, and banned the entry of citizens of seven majority-Muslim countries for 90 days. President Biden revoked that executive order in 2021.
Biden’s decision
President Biden’s actions on Tuesday come as the numbers of unauthorized crossings in the U.S.-Mexico border have continued to go down in recent months, defying migration patterns.
In December, Border Patrol agents made nearly 250,000 encounters with migrants between the point of entries in the Southern border — a record high.
However, those numbers have sharply decreased. In April, U.S. Customs and Border Protection reported nearly 129,000 encounters.
Immigration policy analysts have said the numbers are due to Mexico’s enforcement of its own immigration law at their southern border with Guatemala and the northern border with the U.S.
Rolando Salinas, the mayor of Eagle Pass, Texas, questioned Biden’s timing for this announcement.
Eagle Pass has been the epicenter of Texas Gov. Greg Abbott’s fight with the Biden administration over its handling of immigration.
“I just wish this was done back in December when our city was being hit with 2-3 thousand people per day,” Salinas told NPR in a text message. “We won’t forget those days.”
Over the last few months, Biden has been announcing narrow policies at the border, including proposing a new rule intended to speed up the removal of some migrants ineligible for asylum.
Biden’s decision will likely be challenged in court by immigrant rights groups.
When he used section 212(f) in 2021 as part of his public health efforts during the COVID-19 pandemic, that’s exactly what happened. Under his order, Biden suspended the entry of non-U.S. citizens who were within the United Kingdom, Ireland, Brazil, and South Africa during 14 days prior to their attempt to enter the United States.
It also applied to those who had been in the Schengen Area, which is made up of 29 European countries.
Lily Axelrod, an immigration attorney based in Memphis, Tenn., said that measure was “quite disruptive to business and family.”
Maribel Hernandez Rivera, director of policy and government affairs for border and immigration at the ACLU, said Biden’s latest executive order will likely have a negative impact on the legal pathways of migration to the U.S.
“Whenever you do anything that bars people from applying for asylum, what you're doing is in fact disrupting the legal pathways that people have,” Hernandez Rivera said.
She said Biden’s actions are a “missed opportunity” to take action to better manage illegal crossings at the Southern border.
“That is just a repeat of what President Trump did, that is just a repeat of cruel policies,” Hernandez Rivera said.
Hernandez Rivera added Biden should focus on his campaign promise of restoring the asylum system in the country.
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