In an aerial view, a Texas National Guard soldier walks past a barrier of shipping containers and razor wire at the U.S.-Mexico border on March 17, 2024 in Eagle Pass, Texas. (File/John Moore/Getty Images)
WASHINGTON — President Joe Biden will sign an executive order on Tuesday that will allow him to partly suspend asylum requests at the U.S.-Mexico border when daily unauthorized crossings reach a threshold of 2,500 migrants.
“We do expect the authority would be in effect immediately,” a senior administration official said on a Tuesday call with reporters previewing the executive order. It would not be permanent and only applies to the southern border, including the southwest land border and southern coastal borders.
The White House has been dealing with the largest number of migrant encounters at the southern border on record. Crossings from the southern border reached an all-time high in December, when U.S. Border Patrol agents had nearly 250,000 encounters, an increase of about 26,000 from the previous record set in May 2022. In addition, presumptive Republican presidential nominee Donald Trump has made it a top issue for voters. It would take effect immediately because the daily numbers already exceed the threshold.
Biden’s move marks his most drastic crackdown on immigration during his administration.
The order makes three changes to asylum law under Title 8 of the Immigration and Nationality Act when that threshold of 2,500 migrants is reached, a senior administration official said. The first is that a noncitizen who crosses the border without authorization will be ineligible for asylum.
The second is any noncitizen who crosses the border while the order is in effect and is processed for removal will only be referred to a credible fear interview with an asylum officer “if they manifest or express a fear of return to their country or country of removal, a fear of persecution or torture, or an intention to apply for asylum,” a senior administration official said.
And the third is raising the standard for credible fear interviews to a “reasonable probability of persecution or torture standard,” which is “a new, substantially higher standard than is currently being applied at the border,” a senior administration official said.
“Taken together, these measures will significantly increase the speed and the scope of consequences for those who cross unlawfully or without authorization and allow the departments to more quickly remove individuals who do not establish a legal basis to remain in the United States,” a senior administration official said.
The order, versions of which were reported ahead of the White House announcement, drew criticism from both parties.
Republicans like U.S. House Speaker Mike Johnson of Louisiana called it a “weak executive order,” while progressive Democrats slammed it as a partial ban on asylum.
A senior administration official argued that the executive order is different from the Trump administration’s immigration policies because the order will “only apply during times of high encounters.”
Biden, who campaigned in 2020 on protecting asylum law, is relying on the same presidential authority — Section 212(f) of the Immigration Nationality Act — that the Trump administration used to justify several immigration-related restrictions, such as the travel ban from predominantly Muslim countries.
The Biden order would also allow border officials to return certain individuals who cross the border without authorization back to Mexico – nationals from Cuba, Nicaragua, Haiti and Venezuela.
There will be exemptions for lawful permanent residents, unaccompanied minors, people with an “acute medical emergency” or an extreme threat to life or safety, and for victims of human trafficking, a senior administration official said.
A senior administration official said this temporary order would go away when there are seven consecutive days when daily encounters are less than 1,500 migrants between ports of entry. Once that is established, the order expires in 14 calendar days.
The Biden administration has considered moving forward with the executive order after an immigration deal the White House and Senate brokered earlier this year fell apart after Trump came out against it. Republicans quickly fell in line. Among other things, that deal would have given Biden the authority to shut down any asylum requests once encounters reached 5,000 people in a week or 8,500 in a day.
A senior administration official said the 2,500 threshold was chosen to be similar to the deal stuck in the Senate.
“To Joe Biden, the safety of American families should always come first,” senior deputy press secretary Andrew Bates said in a memo.
“That’s why today, the President is announcing new historic executive actions to bar migrants who cross our Southern border unlawfully from receiving asylum. Because of President Biden’s leadership, law enforcement will gain new capabilities that congressional Republicans cannot block.”
This is a developing story and will be updated.
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