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Biden’s executive actions, effective at the end of the day Tuesday, impose broad restrictions on asylum as long as illegal border crossings remain above an average of 2,500 per day, according to administration officials.
Migrants ineligible for protection will be returned to their home countries or Mexico unless they express a convincing fear of persecution that would qualify them for an exemption under tougher screening procedures, administration officials said.
The move was also intended to shore up Biden’s standing on one of his biggest political vulnerabilities heading into the November election, after years of record illegal crossings and blistering Republican attacks on the president’s record.
“While these steps are important, they’re not enough to truly secure the border,” Biden said, making the announcement flanked by lawmakers and city officials from border states. “We have to change our laws.”
Biden officials said the moves are a stop gap made necessary by the repeated failure of a bipartisan bill this year that would have combined the asylum cap with billions of dollars in additional funding for immigration enforcement.
Republicans voted against the bill as recently as last month after opposition from former president and presumptive GOP nominee Donald Trump and concerns that it would hurt him in an election year.
The American Civil Liberties Union immediately said it will challenge the Biden measures in court. The organization has led lawsuits against attempts to restrict asylum under Biden and Trump.
“We intend to sue,” ACLU lawyer Lee Gelernt said in a statement minutes after the White House announced the policy. “An asylum ban was illegal under Trump and is just as illegal now.”
Without additional funding, the administration’s ability to close the border to illegal crossings may face many of the same limitations that have hampered previous efforts to deter migration by curbing asylum access. U.S. border authorities lack detention space, deportation capacity and sufficient number of asylum officers to uphold the basic U.S. legal obligations to prevent someone from being sent home to face torture, death or other grievous harm.
Since Biden took office, Mexican authorities have agreed for the first time to take back large numbers of non-Mexican border crossers deemed ineligible for U.S. asylum. But Mexico generally limits returns to Central Americans, Cubans, Venezuelans and some Haitians.
That leaves U.S. authorities still facing significant challenges to carrying out quick deportations for the record numbers of migrants arriving from other nations in South America, Africa and Asia, including China. Border authorities have limited detention space and available aircraft for deportation flights, and migrants — even those deemed ineligible for asylum — are often released into the United States pending a court hearing when there is nowhere to hold them and too many obstacles to sending them home.
“We know from the past decade of border policy that any attempt to stem unauthorized migration with asylum bans alone will fail,” said Andrea Flores, a former Biden official who is now at the immigration advocacy group FWD.us. “Smugglers will adjust, and vulnerable people will be sent to more dangerous locations along the border.”
The temporary restrictions will lift if the secretary of homeland security determines that illegal crossings have fallen below a daily average of 1,500 for seven consecutive days, an administration official said.
Unaccompanied minors who cross the border will be exempt from the restrictions, officials said, as well as migrants who are in medical distress or facing other immediate life threats.
Biden’s measures come as border crossings remain high by historical standards but down more than 50 percent from the record levels set in December, when the president’s weak poll ratings on the issue tumbled even lower. In recent weeks, illegal crossings have averaged about 3,700 per day along the U.S.-Mexico border, where migrants — including large numbers of families and children — surrender to U.S. authorities and request U.S. protection.
The Biden administration does not hold family groups in U.S. immigration detention, and family groups are generally returned and deported at lower rates than single adults.
The restrictions drew a mix of remarks from Republicans and Democrats in Congress.
Sen. John Cornyn (R-Tex.) and other Republicans called Biden’s new policy “political cover” to appease voters ahead of the presidential elections.
“The simple fact of the matter is that the same laws that were in effect back when President Trump was in office are still in effect, but the difference is the unwillingness of this White House and this administration simply to enforce the law,” Cornyn said.
Sen. Alex Padilla (D-Calif.) slammed the policy in a statement that accused Biden of “reviving Trump’s asylum ban.”
“President Biden has undermined American values and abandoned our nation’s obligations to provide people fleeing persecution, violence, and authoritarianism with an opportunity to seek refuge in the U.S,” Padilla said. “This asylum ban will fail to address the challenges at our border, just as it did under the Trump Administration. It will lead to people with legitimate asylum claims being prevented from seeking safety and returned to harm.”
Under U.S. law, anyone who reaches U.S. soil has the right to seek asylum or another form of protection, regardless of how they enter. Biden will rely on presidential authorities in U.S. immigration law to temporarily suspend illegal entries on a temporary basis, administration officials said, citing sections 212(f) and 215(a) of the U.S. Immigration and Nationality Act.
Democrats have worried for months that a possible summer migration surge could overwhelm the Border Patrol and harm the president’s chances against Trump in the Nov. 5 election.
Even Democratic strongholds such as New York and Chicago, which will host the Democratic National Convention to nominate Biden for a second term in August, have been engaged in fierce arguments over migration. Texas Gov. Greg Abbott, a Republican, has been busing tens of thousands of migrants to northern cities from the southern border, straining homeless shelters and schools.
Trump also tried to institute bars on asylum. In November 2018, a federal judge in California struck down a Trump administration policy that barred immigrants from seeking asylum if they crossed the border illegally, saying the rules violated federal law. The U.S. Court of Appeals for the 9th Circuit later upheld that decision.
The Biden administration says it has allowed historic numbers of migrants to enter legally — if they apply first. Officials say they cannot manage large numbers of unexpected arrivals, which are part of a global trend of mass migration driven by poverty, climate change and violence.
In May 2023 Biden officials ended Title 42 expulsions and created new asylum restrictions, which are technically still in effect despite legal challenges, barring anyone from seeking asylum unless they have tried unsuccessfully to apply for protection elsewhere. But that system required border officials to ask migrants if they were afraid to return home and why, lawyers said, to prevent anyone from being deported to a country where they could face persecution.
Biden’s new rules no longer require officials to question migrants about their fears, and could remove migrants much faster than in the past.
Advocates for immigrants say Biden’s plan sets the first-ever numerical cap on seeking asylum, a humanitarian protection that for decades has been available to foreigners who set foot on U.S. soil. To qualify they must be escaping persecution based on race, religion and other protected grounds, and federal law says it doesn’t matter if they crossed into the United States illegally.
Biden’s expected new policy also requires that migrants “manifest” their fears of being deported instead of having an immigration official ask them if they are afraid — a practice informally known as the “shout test.”
Advocates have expressed concerns about using this test, which was in place on the southern border until the Title 42 expulsions ended in May 2023, according to a report published in January by the Center for Gender and Refugee Studies at the University of California College of the Law in San Francisco.
Researchers found the “shout test” meant that far fewer migrants were referred to protection screenings because border agents allegedly failed to heed their concerns. In other cases, migrants lacked interpreters or were afraid to speak. That means migrants could be swiftly deported to countries where they might be killed, advocates said.
Amnesty International USA said the Biden rule “sets a dangerous international precedent as a first-of-its-kind numerical cap on asylum … using the same legal authority that the Trump administration used to implement the dangerous and xenophobic Muslim and African travel bans.
“To be clear, this executive action will not fix the problems plaguing the border,” said Amy Fischer, director of refugee and migrant rights at Amnesty International USA.
“This is an utterly shameful move for a country that once helped draft the Refugee Convention,” Fischer said. “We need real solutions that respect human rights, address root causes of forced migration, allow for safe and orderly pathways to safety, and meet the needs of communities at the border and in the interior of the United States.”
Biden officials have defended the president’s restrictions as part of a more balanced approach that includes a major expansion of opportunities for migrants to enter the United States legally. The president is allowing about 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela to enter legally if they apply through a sponsor in the United States.
U.S. officials are also granting nearly 1,500 appointments along the southern border per day for migrants and asylum seekers who use a government mobile app, CBP One. Those appointments are unaffected by the new asylum restrictions and will not count toward the numeric threshold, Biden officials said.
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