President Biden issued an executive order Tuesday barring migrants from seeking asylum at the U.S.-Mexico border as border crossings increase, a dramatic election-year move to ease pressure on the immigration system and address a major concerns among voters.
The measure is the most restrictive border policy instituted by Biden, or any other modern Democrat, and echoes President Donald J. Trump's 2018 attempt to halt migration that was blocked in federal court.
In his speech at the White House, Biden said he was forced to take executive action because Republicans had blocked bipartisan legislation that included some of the most significant border security restrictions Congress had considered in recent years.
“We must face a simple truth,” the president said, joined by a group of lawmakers and mayors from border communities. “To protect America as a land that welcomes immigrants, we must secure the border first and protect it now.”
Aware that the policy raised uncomfortable comparisons, Biden took pains to distinguish his actions from Trump's. “Let's continue to work closely with our Mexican neighbors instead of attacking them,” Biden said. He said he would never refer to immigrants as “poisoning the blood” of the country, as Trump has done.
However, this move shows how dramatically immigration policy has shifted to the right in the United States. Polls suggest both parties support the border measures once denounced by Democrats and championed by Trump, as the number of people crossing the country has reached record levels in recent years.
Biden's executive action was set to take effect at 12:01 a.m. Wednesday, at which point border agents could return migrants across the border into Mexico or their home countries within hours or days.
The American Civil Liberties Union said it plans to challenge the executive action in court.
“The administration has left us no choice but to sue,” said Lee Gelernt, an attorney with the ACLU, which led the charge against the Trump administration's attempt to block asylum in 2018 and led to the policy being halted by the federal courts. “It was illegal under Trump and it is no less illegal now.”
Assuming it survives legal challenges, the policy will take effect once the seven-day average of daily illegal crossings reaches 2,500, a now regular occurrence. The border will reopen only after the figure drops to 1,500 for seven consecutive days and remains so for two weeks.
This is a significant change in how daycare has operated for years.
Typically, migrants who cross the border illegally and seek asylum are released into the United States to await court appearances, where they can make their cases. But a huge backlog means these cases can take years to deal with.
The new system is designed to detect illegal crossings.
There would be limited exceptions to the restrictions announced Tuesday, including for minors crossing the border alone, victims of human trafficking and those using a Customs and Border Protection app to make an appointment with a border officer to request asylum .
But in most cases, the order suspends long-standing safeguards that give anyone who sets foot on American soil the right to seek safe haven.
The executive action mirrors legislation that Republicans blocked in February, arguing it wasn't strong enough. Many of them, egged on by Trump, were reluctant to give Biden a legislative victory in an election year.
“Donald Trump implored them to vote 'no' because he was concerned that additional border controls would hurt him politically,” Andrew Bates, a White House spokesman, said in a statement Tuesday. He added: “The American people want bipartisan solutions to border security, not cynical politics.”
Immigration advocates and some progressive Democrats expressed concern that Biden was abandoning his promise to rebuild the asylum system.
“By reinstating Trump's asylum ban, President Biden has undermined American values and abandoned our nation's obligation to provide people fleeing persecution, violence and authoritarianism the opportunity to seek refuge in the United States,” he said Senator Alex Padilla, Democrat of California.
Biden said those who believe his latest restrictions are too tough should be “patient.” She said that in the coming weeks she will talk about “how we can make our immigration system more fair and just.”
Tuesday's decision represents a sharp turn for Biden, who came into office attacking Trump for his efforts to limit asylum. During a 2019 debate, Biden, then running against Trump for the first time, harshly criticized his rival's policies.
“This is the first president in the history of the United States of America where anyone seeking asylum must do so in another country,” Biden said at the time.
Trump has attempted several times to close the US border to asylum seekers, only succeeding in 2020, when he used a Covid-era emergency rule to seal the border to most migrants.
Immigration has proven to be a huge political vulnerability for Biden, reaching crisis point in December, when about 10,000 people a day were making their way into the United States.
Biden administration officials, panicked by the numbers, have pushed Mexico to do more to curb migration. Mexican officials have since used charter flights and buses to move migrants further south and away from the United States.
The number of people crossing has since plummeted, although the numbers are still historically high. More than 3,500 people crossed without authorization on Sunday, in line with the trend in recent weeks, according to a person familiar with the data.
Even with the executive order in place, migrants may still require other protections designed for those who can demonstrate they will be tortured in their home country. But this screening is at a much higher level than asylum screening, and as a result, administration officials have said they do not expect many migrants to be screened in the United States.
People who cross illegally and do not qualify for these other protections would be subject to a five-year ban from entering the United States.
White House officials believe the order gives Biden an opportunity to blame Republicans for dooming the bipartisan bill. That legislation would also provide billions to the Department of Homeland Security for more border agents and immigration judges.
Biden cannot provide those resources through executive action. For weeks, White House officials have said they prefer the legislation to the presidential proclamation because it would be more long-lasting and less vulnerable to a court challenge.
The order also carries some political risks. Republicans have questioned 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.
“It's all about show, because he knows we have a debate scheduled in three weeks,” Trump said on social media Tuesday.
As Biden weighed whether to take executive action in recent months, his administration has taken smaller measures to try to control those backlogs.
In May, the administration proposed a rule change that would allow agents to quickly identify people ineligible for asylum, such as those convicted of serious crimes. Currently, they may be allowed to enter the country and wait months, or often years, for the asylum process. The proposal must go through a 30-day public comment period.
In May, U.S. Citizenship and Immigration Services also issued a new policy instructing asylum officials to evaluate whether applicants can find refuge in their own countries before coming to the United States.
