Joe Biden issues order to halt sheltering of migrants at US-Mexico border

President Joe Biden on Tuesday unveiled plans to immediately impose significant restrictions on migrants seeking asylum at the U.S.-Mexico border, as the White House tries to neutralize immigration as a political liability ahead of the November elections.

The White House detailed a long-awaited presidential proclamation to be signed by Biden that would halt the granting of asylum to migrants once U.S. authorities deem there has been an overcrowding at the southern border.

The Democratic president has been considering unilateral action for months, particularly after the failure of a bipartisan border security deal in Congress that was rejected by most Republican lawmakers at the behest of presumptive Republican presidential nominee Donald Trump.

According to senior administration officials, the order would go into effect when the number of border encounters between ports of entry reaches 2,500 per day. That means Biden’s order should go into effect immediately, since that figure is now higher than the daily average. The restrictions would remain in effect for two weeks until the number of encounters per day between ports of entry falls to 1,500 or less under a seven-day average. Those figures were first reported by The Associated Press on Monday.

Once the order goes into effect, migrants who reach the border but do not fear being returned to their home countries will be immediately removed from the United States within a matter of days or even hours. Those migrants will face punishments that could include a five-year ban on re-entering the United States and possible criminal prosecution.

In the meantime, anyone who expresses a fear or intention to seek asylum will be screened by a U.S. asylum officer, but to a higher standard than currently used. If they pass the screening, they can pursue more limited forms of humanitarian protection, including the U.N. Convention against Torture.

Biden’s order was detailed by four senior administration officials who insisted on anonymity to describe the effort to reporters. The directive comes as the number of migrants encountered at the border has been steadily declining since December, but senior administration officials still justified the order by arguing that the numbers are still too high and that the figures could rise during better weather, when the number of encounters traditionally surges.

Still, many questions and complexities remain about how Biden’s new directive will be implemented.

For example, the Biden administration already has an agreement with Mexico under which Mexico agreed to accept up to 30,000 citizens each month from Cuba, Haiti, Nicaragua and Venezuela when they are denied entry from the U.S., and senior administration officials say that will continue under this order. But it’s unclear what happens to citizens of other countries who are denied entry under Biden’s directive.

Senior officials also acknowledged that the administration’s goal of quickly deporting migrants is complicated by insufficient funding from Congress. The administration also faces some legal hurdles when it comes to detaining migrant families, though the administration said it would continue to comply with those obligations.

The legal authority being implemented by Biden falls under Section 212(f) of the Immigration and Nationality Act, which allows the president to limit entry for certain immigrants if it is deemed “detrimental” to the national interest. Senior officials expressed confidence that they would be able to implement Biden’s order, despite threats from major legal groups to sue the administration over the directive.

“We intend to sue,” said Lee Gelrant, a lawyer for the American Civil Liberties Union who successfully fought similar legal challenges to Trump’s rule. “The asylum ban remains illegal, just as it was when Trump imposed the failed effort.”

Senior administration officials stressed that Biden’s proposal differs dramatically from Trump’s, which relies on the same provisions of the Immigration and Nationality Act that Biden is using, including his 2017 directive to ban citizens of Muslim-majority countries and his 2018 effort to restrict asylum.