Biden Signs Executive Order Dramatically Limiting Asylum at Southern Border

WASHINGTON — President Joe Biden on Tuesday placed significant new restrictions on migrants seeking asylum at the U.S. border with Mexico, announcing that consideration of requests will temporarily cease once the number of encounters tops 2,500 between official ports of entry.

The surge in the number of illegal immigrants at the southern border has been a hot-button issue since the start of the 2024 presidential campaign. 

It became even more of one after presumptive Republican nominee former President Donald Trump encouraged GOP lawmakers on Capitol Hill to quash a bipartisan deal addressing the issue.

“We had a clear bipartisan deal that was the strongest border security agreement in decades,” Biden said at the White House Tuesday afternoon.

“Then Republicans in Congress … walked away from it,” he said. “Why? Because Donald Trump told them to … he told them he didn’t want to fix the issue. He wanted to use it to attack me,” the president continued.

He called that request “an extremely cynical political move” and “a complete disservice to the American people.”

In essence, the executive order signed by the president sets out to accomplish the same broad goal as the bipartisan legislation would have — shutting down the asylum process whenever the border is overwhelmed by migrants.

As he unveiled the new directive, Biden was joined by a bipartisan group of state and local officials, members of Congress and law enforcement officials, whom he said recognize “the border is not a political issue to be weaponized.”

“They don’t have time for the games played in Washington, and neither do the American people,” the president said. 

He added that he would have preferred to address the border crisis through bipartisan legislation, “but Republicans have left me with no choice.”

Even as he dramatically curtailed the asylum process, however, the president continued to assert that he believes immigration is “the lifeblood of America.”

“This action will help to gain control of our border, restore order to the process,” he said.

The president’s order falls under the Immigration and Nationality Act sections 212(f) and 215(a), which allow a president to limit entries for certain migrants if it’s deemed “detrimental” to the national interest. 

It mandates that once the restrictions outlined in the executive order are triggered, they will stay in effect until two weeks after the daily encounter numbers are at or below 1,500 per day between ports of entry.

During a briefing with reporters on Tuesday, senior administration officials said individuals who cross the southern border unlawfully before the restrictions are lifted “will generally be ineligible for asylum, absent exceptionally compelling circumstances.”

Migrants who arrive at the border and do not express fear of returning to their home countries during these periods will be subject to immediate removal from the United States. 

Those migrants could also face punishments up to and including a five-year bar from reentering the United States, as well as potential criminal prosecution.

Those who do say they wish to seek asylum will be screened by a U.S. asylum officer but at a higher standard than what is currently used. 

If they pass the screening, they can pursue limited forms of humanitarian protection, including the U.N. Convention Against Torture.

Putting this all into effect won’t be easy, administration officials admitted Tuesday. They contend meeting the goal of swiftly deporting migrants will be hampered by insufficient funding from the Republican-controlled Congress.

And there are other complications. Within minutes of the president’s announcement, Lee Gelernt, an attorney for the American Civil Liberties Union, said the organization plans to sue the administration to prevent the policy from going into effect.

“A ban on asylum is illegal just as it was when Trump unsuccessfully tried it,” Gelernt said.

Republicans on Capitol Hill also took a dim view of Biden’s announcement. Senate Republican Leader Mitch McConnell, R-Ky., likened the president’s action to “turning a garden hose on a five-alarm fire.” 

“The American people are not fools. They know that this play is too little, too late,” McConnell said.

Sen. Ted Cruz, R-Texas, asked, “Why didn’t you do this in 2021? Why didn’t you do this in 2022? Why didn’t you do this in 2023?

“He could have stopped this every single day of his presidency,” the senator added.

On the other side of the Capitol, Rep. Michael McCaul, R-Texas, chairman emeritus of the House Committee on Homeland Security, said the executive order “ignores our nation’s immigration laws and allows 2,500 illegal immigrants to cross the border every day before any real enforcement tools are used. 

“That would mean close to 1 million illegal immigrants could cross our border each year with no repercussions. This is not a serious proposal. It’s just a last-minute stunt in an election year,” McCaul said.

As for Trump, he dismissed the executive order out of hand, saying it was “all for show” ahead of his looming debate with the president on June 27 in Atlanta, Georgia.

Dan can be reached at [email protected] and @DanMcCue