President Joe Biden is preparing to issue an executive order that will dramatically restrict asylum processing at the U.S.-Mexico border, aiming to manage the ongoing surge in migrant crossings. The order, set to be announced on Tuesday, stipulates that asylum requests will be halted once daily encounters between ports of entry average 2,500, with the border reopening only once that number drops to 1,500. This move marks Biden's most aggressive unilateral action to control the border situation, according to several individuals familiar with the discussions.
The order is expected to take immediate effect, as current daily figures surpass the 2,500 threshold. The White House has been briefing lawmakers on the details, preparing for the formal rollout. Senior White House officials, including Chief of Staff Jeff Zients and Legislative Affairs Director Shuwanza Goff, have been informing Congress about the planned executive action.
The decision to cap asylum requests comes as Biden faces mounting pressure to address border security, especially after bipartisan legislation aimed at tightening asylum protocols fell apart due to opposition from congressional Republicans, urged on by former President Donald Trump. The collapse of this legislative effort has pushed Biden to explore executive options, despite a recent decline in illegal crossings.
The proposed executive order will rely on Section 212(f) of the Immigration and Nationality Act, granting the president broad authority to block entry of certain immigrants if deemed detrimental to national interests. This legal rationale was notably used by Trump to implement some of his strictest immigration policies, including the controversial travel ban.
"We continue to look at all options on the table," White House Press Secretary Karine Jean-Pierre said, underscoring the administration's determination to address border security comprehensively.
Biden's order is expected to face significant legal challenges. Advocacy groups like the American Civil Liberties Union (ACLU) are already preparing to contest the policy in court. "A policy that effectively shuts down asylum would raise clear legal problems, just as it did when the Trump administration tried to end asylum," said Lee Gelernt, an attorney with the ACLU.
In addition to legal pushback, Biden will likely encounter vocal opposition from within his own party. California Senator Alex Padilla criticized the executive order, calling it "just not the solution we need" and emphasizing the need for a comprehensive strategy that addresses root causes of migration in Latin America.
The executive order also comes shortly after Mexico's presidential election, which saw Claudia Sheinbaum become the nation's first female leader. Biden has expressed his commitment to collaborating with Mexico to address shared challenges, although it remains unclear how much cooperation the U.S. will require from Mexican officials to implement the new asylum policy effectively.
Biden plans to unveil the executive order alongside several border mayors, signaling a collaborative approach to border management. Texas Mayors John Cowen of Brownsville and Ramiro Garza of Edinburg have confirmed their invitations, though some, like San Diego Mayor Todd Gloria, will be unable to attend due to scheduling conflicts.
Representative Henry Cuellar, a Texas Democrat briefed on the plan, emphasized the necessity of cooperation from Mexico for the order to be effective. "If they're not going to let them in, where do they go? Do they return them to Mexico, or do they try to deport as many as they can?" Cuellar asked, highlighting logistical challenges.
Jennifer Babaie, an attorney at Las Americas Immigrant Advocacy Center, voiced concerns about potential deportation orders under the new policy, particularly if it denies migrants the opportunity to seek asylum. She noted that the pandemic-era Title 42 expulsions allowed migrants to try crossing again without legal repercussions, whereas formal deportation orders could expose them to felony prosecution and future entry bars.
The administration's decision to act now, after months of deliberation, reflects an urgent need to preempt any spikes in border encounters as the 2024 elections approach. While Biden's order aims to manage migration more effectively, it is poised to ignite a heated debate over immigration policy and executive authority.
