JFNA Briefing: Executive Order to Curb Migrant Crossings by Halting Some Asylum Claims

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June 5, 2024

President Biden seeks to prevent new asylum claims by migrants who walk across the border until levels drop by roughly two-thirds of where they stand today.

The U.S.-Mexico border is seeing record levels of migrants. According to the most recent data available, U.S. authorities recorded about 4,300 encounters with undocumented migrants between ports of entry per day in April. These numbers are likely to increase with the expected influx of crossings that typically happens in the summer and early fall before the election. Executive orders on border control are not new, as Congress has historically been unwilling or unable to pass immigration reform and border security bills for decades. In February, President Biden’s and a bipartisan coalition’s boarder security bill was rejected by Republicans at the behest of Trump. Biden’s new executive order will adopt some policies directly from this bill and allow Biden to declare he has pushed the boundaries of his power after lawmakers killed off the bill.

Executive Order
President Biden’s executive order would shut down asylum requests at the U.S.-Mexico border once the number of daily migrants hits 2,500. The border would reopen once the number declines to 1,500. Since daily figures are currently higher than 2,500, this order could go into effect immediately. The last time the daily average was below 1,500 encounters was July 2020, at the height of Covid-19. The administration wants to encourage migrants to seek asylum at ports of entry by using the U.S. Customs and Border Protection’s CBP One app, which schedules about 1,450 appointments per day.

Legal Issues
Advocacy groups are already preparing to challenge the executive order in courts. A former DHS official expects the courts to respond by staying the order and temporarily prevent it from taking effect. Immigration policy experts expect the legal fight to last months and probably reach the Supreme Court. Biden’s order will enact changes under Section 212(f) of the Immigration and Nationality Act, which gives a president broad authority to block entry of certain immigrants into the U.S. if it is deemed “detrimental” to the national interest. This is the same legal rational that Trump used on some of his toughest migration executive orders.

Democratic and Republican Stances
There is vocal resistance from many Democratic lawmakers, some of whom are concerned that Biden is ignoring U.S. law that requires granting asylum to people with credible fears of returning to their home countries. Others understand that Biden is trying to appeal to independent voters but are worried he is alienating base voters. Further critics of the plan are pushing the administration to follow up the order with humanitarian-focused executive orders for migrants. Senator Alex Padilla (D-CA), a vocal critic of the order, argued that Democrats who back Biden’s Executive Order are misreading the politics. Still, there are some Democratic lawmakers such as House Minority Leader Hakeem Jeffries (D-NY-8), Representative Henry Cuellar (D-TX-28), and Senator Sherrod Brown (DOH), who endorse the executive order, saying it is a step in the right direction Many Republicans are criticizing the order, saying it is political ploy of blaming congressional Republicans for inaction or that it is too little, too late.