After claiming for much of his presidency that he was unable to take unilateral action to address the ongoing immigration crisis, President Joe Biden announced an executive order on Tuesday to place significant, immediate restrictions on the record number of illegal immigrants seeking asylum in the U.S.
The newly enacted order directs Customs and Border Protection to close the border between officially designated ports of entry when the average number of daily crossings surpasses 2,500 over a weeklong period. The threshold has already been met over the past week, senior administration officials said. This means that much of the southern border will be closed as soon as midnight.
“Frankly, I would’ve preferred to address this issue through bipartisan legislation, because that’s the only way to actually get the kind of system we have now that’s broken fixed, to hire more Border Patrol agents, more asylum officers, more judges,” Biden said at the White House, “but Republicans have left me no choice. Today, I’m announcing actions to bar migrants who cross our southern border unlawfully from receiving asylum.”
After the asylum shutdown takes effect, the border can’t be reopened until two weeks after it is determined that average crossings have dropped below 1,500 for seven consecutive days. The president’s order falls under the Immigration and Nationality Act, which authorizes the suspension of entries for immigrants if they’re deemed “detrimental” to the national interest.
Immigrants who fail to express fear of returning to their home countries will face immediate removal from the U.S. and face punishments, including a five-year ban from U.S. re-entry and potential criminal prosecution.
Biden’s order makes exceptions for unaccompanied minors, victims of human trafficking, immigrants with severe medical emergencies, and those facing imminent threats to their safety. Moreover, asylum-seekers who set up an appointment at a port of entry via the CBP One mobile app can still be processed.
The move comes five months ahead of the presidential election, a fact Republicans were quick to point out in their criticism of Biden’s long-awaited executive action.
“President Biden’s Executive Order is nothing more than a desperate political stunt to try and stabilize his plummeting poll numbers,” House GOP leadership said in a joint statement. “Americans can see right through Biden’s election-year stunt.”
Prior to the collapse of the Senate’s bipartisan border deal in February, Biden said he had “done all I can do” to secure the border through his executive authority and proceeded to wait for legislation addressing the surge in immigration, rather than acting on his own. Four months later, he changed course.
The Biden administration’s order is expected to face legal challenges from immigration-advocacy groups on grounds similar to those cited in legal challenges brought against the Trump administration. Former president Donald Trump used the same provisions in the Immigration and Nationality Act that Biden is now implementing.
Shortly after Tuesday’s announcement, the American Civil Liberties Union said it would challenge the Biden administration’s border order in court, noting its similarities to the “Trump administration’s asylum ban.”
The Biden administration said it would defend its border policies from litigation, while maintaining distance between its order and Trump’s asylum restrictions. Administration officials argued they included “important humanitarian and legal changes” that the previous administration did not enact at the time.
“The goal here is to secure our border while preserving legal immigration consistent with our values as a nation,” an administration official told reporters. “There are several differences between the actions that we are taking today and Trump-era policies. The Trump administration attacked almost every facet of the immigration system and did so in a shameful and inhumane way. . . . The actions that we are taking today will only apply during times of high encounters.”