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President Biden issued an executive order on Tuesday barring migrants from seeking asylum at the U.S.-Mexico border amid a surge in crossings, a major election-year move aimed at easing strain on the immigration system and addressing a major concern among voters.
The order is the most restrictive border policy enacted by Biden or any other modern Democrat and mirrors President Donald J. Trump’s 2018 effort to cut off immigration that was blocked in federal court.
Once the seven-day average of illegal entries reaches 2,500 per day, restrictions will kick in. The daily total has already exceeded that number, meaning Biden’s executive order could take effect immediately — allowing border officials to return migrants to Mexico or their home countries within hours or days.
Typically, migrants who cross the border illegally and apply for asylum are released into the United States to await a court appearance, where they can defend themselves, but a massive backlog means those cases can take years to be heard.
The new system is designed to stop these illegal border crossings.
The border will only reopen to asylum seekers if the number of crossings drops significantly. That number must remain below 1,500 per day for seven consecutive days. After two weeks, the border will reopen to migrants.
The American Civil Liberties Union said it plans to challenge the executive action in court.
“The government has left us no choice but to sue,” said Lee Gelernt, an attorney with the American Civil Liberties Union, which led the case against the Trump administration’s 2018 ban on asylum that was ultimately blocked in federal court. “This policy was illegal under Trump and it’s illegal now.”
Biden’s move reflects a sharp rightward shift in U.S. immigration policy, as polls show bipartisan support for border measures once decried by Democrats but supported by Trump as the number of migrants crossing the border reached record levels in recent years.
There will be limited exceptions, including for minors crossing the border alone, victims of human trafficking and people who use the Customs and Border Protection app to schedule an appointment with a border official to apply for asylum.
But in large part, the order suspends long-standing guarantees that anyone who sets foot on U.S. soil has the right to seek asylum. The order is echoed in a bipartisan bill that contains some of the most significant border security restrictions Congress has considered in years. Republicans blocked the bill In February, Democrats said the bill wasn’t tough enough. Many, egged on by Trump, were reluctant to hand Biden a legislative victory in an election year.
“Donald Trump implored them to vote no because he fears that increased border enforcement would harm his political interests,” White House spokesman Andrew Bates said in a statement on Tuesday. He added: “The American people want a bipartisan solution to border security, not the politics of cynicism.”
Immigration advocates and some progressive Democrats have expressed concern that Biden is backing away from his promise to rebuild the asylum system.
“By reinstating Trump’s asylum ban, President Biden undermines American values and abandons our nation’s obligation to provide people fleeing persecution, violence, and dictatorship the opportunity to seek asylum in the United States,” said Sen. Alex Padilla, D-Calif.
Tuesday’s decision is a significant shift for Biden, who early in his presidency blasted Trump’s efforts to restrict asylum. In a 2019 debate, Biden, then running against Trump for the first time, harshly criticized his opponent’s policies.
“This is the first president in American history to mandate that asylum seekers must apply in another country,” Biden said at the time.
Trump has tried repeatedly to close the U.S. border to asylum seekers, but he was not successful until 2020, when he used coronavirus-era emergency rules to seal the border and prevent most migrants from entering.
In calls with reporters, Biden administration officials expressed anger at the idea that the president’s executive order paralleled Trump’s actions. They stressed that the Biden administration would only turn away asylum seekers if crossings surged.
Immigration has proven to be a huge political weakness for Biden, reaching a crisis point in December when about 10,000 people a day were entering the United States.
Biden administration officials, alarmed by the numbers, have urged Mexico to do more to curb immigration. Mexican officials have since used charter flights and buses to move migrants further south and away from the United States.
Border crossings have since dropped significantly but remain historically high. On Sunday, more than 3,500 people crossed without permission, according to a person familiar with the matter, which is consistent with the trend in recent weeks.
Even with the executive order in place, immigrants can still apply for other protections designed for people who can prove they would be tortured in their home countries. But the bar for such screening is much higher than for asylum, so administration officials say they don’t expect many immigrants to make it through and enter the United States.
People who cross the border illegally and do not qualify for other protections are barred from entering the U.S. for five years.
White House officials viewed the executive order as an opportunity for Biden to accuse Republicans of sabotaging the bipartisan bill, which would also provide billions of dollars to the Department of Homeland Security for additional border officers and immigration judges.
Biden cannot provide those resources through executive action. For weeks, White House officials have said they prefer legislation over presidential proclamations because it would be more permanent and less susceptible to court challenges.
The order also comes with some political risks. Republicans have questioned why Biden didn’t take unilateral action on the border sooner. In January, he told reporters he had “done everything I could” on the border and needed help from Congress.
“It’s just cosmetic. Everybody knows that,” Louisiana House Speaker Mike Johnson, a Republican, said of the president’s order during a news conference Tuesday morning. “If he was really concerned about the border, he would have done it a long time ago.”
Biden has considered whether to take executive action in recent months, while his administration has taken smaller steps to try to get those backlogs under control.
In May, the administration proposed a rule change that would allow officials to quickly identify people who don’t qualify for asylum, such as those convicted of serious crimes. Currently, such people may be allowed into the country and then wait months or even years to be granted asylum. The proposal must undergo a 30-day public comment period.
USCIS also issued a new policy in May directing asylum officers to consider whether applicants can find asylum in their own countries before coming to the United States.
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