It’s been reported for months that President Joe Biden would issue a drastic executive order to address illegal border crossings, significantly restricting access to the asylum process if unauthorized arrivals at the U.S.-Mexico border hit a certain number. That action finally arrived today.
“The entry of any noncitizen into the United States across the southern border is hereby suspended and limited,” said Biden’s order. When border encounters between ports of entry hit an average of 2,500 per day over a seven-day period, migrants will no longer be allowed to seek asylum unless they qualify for a narrow exception or request an appointment at a port of entry through an app (a process that has been glitchy and cumbersome). The restrictions will lift two weeks after the daily number of encounters between ports of entry falls below 1,500 on average over a seven-day period.
Biden is issuing the order under the Immigration and Nationality Act sections 212(f) and 215(a). Former President Donald Trump cited 212(f) authority in immigration actions, including his 2017 order banning the entry of people from several Muslim-majority countries. Trump’s uses of 212(f) were met with legal challenges, and the American Civil Liberties Union has already said it will sue the Biden administration over today’s order.
“These actions are not permanent,” noted a White House press release. “They will be discontinued when the number of migrants who cross the border between ports of entry is low enough for America’s system to safely and effectively manage border operations.” The asylum restrictions go into effect tonight.
Border crossings have fallen in recent months, but it’s been years since apprehensions were consistently as low as Biden’s order would demand for asylum processing to resume. “The last time the daily average dipped to 1,500 encounters was in July 2020, at the height of the COVID-19 pandemic,” noted the Associated Press. “U.S. Border Patrol agents recorded a daily average of approximately 3,700 apprehensions of migrants between official ports of entry” during the first three weeks of May, CBS News reported last month, down from “the 8,000 daily average in December.”
As details emerged before the order’s official unveiling, Biden’s critics on the right questioned his sincerity and aims. House Speaker Mike Johnson (R–La.) charged that Biden “has engineered a wide-open southern border and is now trying to convince Americans that he wants to address the chaos he created.” The Heritage Foundation called the order “a farce,” arguing that “the only acceptable number of illegal border crossings is ZERO.”
Biden has faced plenty of criticism from immigrant advocacy groups too. “It’s unfortunate that politics are driving the immigration conversation in an increasingly restrictive direction,” said National Immigration Forum President and CEO Jennie Murray, calling Biden’s use of 212(f) authority “concerning.” The International Refugee Assistance Project called the order and other recent restrictive measures “a remarkable capitulation by the Biden administration to xenophobic politicians who thrive on fear-mongering and scapegoating immigrant communities.”
The reaction among Democratic lawmakers has been mixed. Rep. Pramila Jayapal (D–Wash.), chair of the Congressional Progressive Caucus, called the action “very, very disappointing,” and Rep. Hillary Scholten (D–Mich.), an immigration lawyer, said the administration’s move was “heart-wrenching” and wouldn’t “come close to solving the problem that we are experiencing.” But a sprawling border enforcement deal that failed earlier this year drew support from almost every Senate Democrat, signaling an increased willingness within the party to embrace more restrictive measures and rhetoric as border crossings remain high.
Political squabbles aside, the policy will have a very real and negative impact on migrants. There will always be people willing to make risky journeys across the border, even if they can no longer access asylum. Border measures like Biden’s push sufficiently desperate migrants into more remote, dangerous, and deadly corridors—or, for those who choose to wait for restrictions to lift, into tent cities along the border where they may experience rape, torture, or kidnapping. The White House cited “humanitarian exceptions” to the asylum restrictions, but these will likely be limited.
About five years ago, Biden charged that former President Donald Trump was “fighting tooth & nail to deny those fleeing dangerous situations their right to seek asylum” in the United States. “We should uphold our moral responsibility & enforce our immigration laws with dignity,” he continued. “Not turn away those fleeing violence, war, & poverty.”
Biden’s border order might make sense when viewed as an election-year attempt to claw back some credibility on a top-of-mind voter priority. But it lays bare an unfortunate truth: Neither of the major-party presidential candidates is willing to prioritize humane, commonsense solutions to border challenges.
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