What the border order will do

President Biden on Tuesday took long-awaited executive action that will turn away asylum-seeking migrants who illegally cross the southern border at times when there is a high volume of daily encounters.

The order will take effect when the seven-day average of daily border crossings exceeds 2,500 between ports of entry, senior administration officials said, meaning it will take effect immediately. Biden issued a proclamation announcing the change to the Immigration and Nationality Act.

Senior administration officials framed the order as a response to congressional inaction on immigration after a bipartisan structure in the Senate was blocked by Republicans for the second time.

Administration officials walked a tightrope in announcing the order, a forceful but targeted shift in asylum rights that administration officials said was not comparable to the Trump administration’s systemic crackdowns.

“There are several differences between the actions we are taking today and the policies of the Trump era. The Trump administration has attacked nearly every facet of the immigration system and done so in a shameful and inhumane way,” a senior administration official told reporters on a conference call Monday.

But the order, which comes during an election year in which immigration is expected to play a key role, will almost certainly face legal challenges, as well as criticism from some on the left who argued that this echoes Trump’s moves against the asylum system.

What the order does

The core of the new policy is the ability to refuse entry to most foreign citizens who cross the border without prior authorization.

For purposes of immigration law, a foreign national enters the United States when lawfully admitted by a U.S. official; the new policy will prevent border officials from admitting new asylum seekers while it is active.

The order, an interim final rule released by Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland, will take effect when the seven-day average of daily encounters at the southwest border and southern coastal borders exceeds 2,500.

When that happens, U.S. border authorities will stop implementing credible scare interviews for asylum applications and work to quickly expel foreign nationals who have crossed the border between ports of entry.

Migrants expelled under the order will receive a minimum five-year ban from re-entering the United States and could face criminal prosecution.

According to government officials, Mexico will receive citizens from Cuba, Haiti, Nicaragua and Venezuela, as well as its own citizens, in accelerated deportations.

It is unclear whether the Biden administration will have sufficient resources to quickly expel or detain migrants denied asylum, raising the possibility that more migrants will be released into the interior with deportation orders rather than asylum requests, limiting their ability to apply for permits. of work. .

Officials said the Biden administration will increase its capabilities to return citizens of other countries, including extracontinental migrants from places like China.

“We have worked tirelessly both in the region and around the world to improve and restrict routes into the hemisphere for extra-hemispheric migrants… and we have also worked with governments around the world to improve our ability to repatriate individuals to countries that have historically been challenging,” an administration official told reporters.

Asylum restrictions will have exceptions.

For example, they will not apply to unaccompanied minors and officials will continue to be able to conduct credible interviews with migrants who express fear of returning to their country due to persecution or potential torture.

According to administration officials, the new policy will adhere to U.S. international obligations regarding the treatment of asylum seekers and refugees, although that assessment will almost inevitably be challenged in court.

Officials also said the asylum crackdown will be reinforced by several enforcement measures that target smuggling networks and organizations that profit from migration in the Western Hemisphere.

The measures include revoking U.S. visas for government officials in places like Nicaragua, as well as senior officials at companies that provide services such as transportation to migrants.

And officials said the Justice and Homeland Security departments will work together to more quickly resolve immigration cases for new arrivals, seeking to quickly expel or deport people without a valid asylum claim.

The order will take effect immediately

Senior administration officials said the measure would take effect on Tuesday because the seven-day average of daily border encounters is more than 2,500, despite the fact that illegal crossings have declined in recent months.

An official said the 2,500 number was determined based on similar numbers negotiated by Senate Republicans and Democrats as part of a border security deal that failed to pass the House.

“The goal here is to protect our border and at the same time preserve our values ​​as a nation,” said one official.

While the measure will be lifted when the seven-day average of daily encounters drops below 1,500, that threshold could be difficult to meet. The last time the average number of daily encounters was below 1,500 was in July 2020, during the COVID-19 pandemic, according to the Associated Press.

White House tries to blame Republicans

The timing of the order comes at the height of an election year where polls have consistently shown that voters trust former President Trump — the presumptive Republican Party nominee — more than Biden on the issue of immigration and border security.

Senior administration officials on Tuesday did not explicitly tie the timing of the order to the election, but argued that the move was the result of inaction by Republicans in Congress.

“If Congress refuses to act, and if congressional Republicans refuse to act, the president is prepared to do so,” one official told reporters.

The president and White House officials have previously said it was up to Congress to approve border changes and suggested Biden’s hands were tied on these issues.

The president and his team lobbied hard for a bipartisan bill in the Senate that would have provided funding for thousands of additional Border Patrol agents, investments in technology to capture fentanyl and target drug traffickers, and the addition of asylum and immigration that could help alleviate the backlog of asylum cases.

But Republicans in the Senate twice blocked passage of that bill.

Trump urged Republicans to oppose the legislation, suggesting it could give Biden an election year victory.

“For 3 years, United States border security has been devastated by Congressional Republican opposition to the law enforcement resources President Biden sought,” White House Deputy Press Secretary Andrew Bates wrote in a memo shared with the reporters.

“For 3 years, Joe Biden has led on border security and Congressional Republicans have obstructed him – all in the name of politics,” Bates added.

Republicans have criticized Biden for waiting to take executive action at the border and argued that Tuesday’s move is too little, too late.