The measure has been under consideration by the administration since the defeat this year of a bipartisan border bill that would have established a similar trigger to block asylum seekers from entering the country when U.S. authorities are overwhelmed. The cap would be set at an average of 2,500 illegal crossings a day, according to a person familiar with the plans. Normal asylum processing would resume once crossings fell below 1,500, the official said.
Biden’s order could have immediate effect, as illegal crossings along the U.S.-Mexico border have been averaging more than 3,500 in recent weeks, according to the latest government data.
During the peak of the coronavirus pandemic, US authorities used the public health emergency to rapidly “expel” migrants and turn away asylum seekers who had entered the country illegally. Officials said Biden’s upcoming order would do the same, and that the Border Patrol will continue to face constraints including a shortage of detention space, transportation capacity and asylum officers.
The rejected border bill would have provided billions of dollars in additional funding for deportation capabilities and asylum processing, but Republicans rejected it after former President Donald Trump, the presumptive GOP nominee, voiced his opposition.
Biden has already taken steps to limit asylum requests from immigrants who entered the US illegally, but many migrants are still released into the US because border authorities lack the capacity to detain, screen or deport them. In some cases, the migrants’ home countries won’t accept them or won’t cooperate with US authorities in deporting them.
“The big question for me is whether this will be accompanied by additional funding,” said Kathleen Bush-Joseph, a lawyer and analyst at the nonpartisan Migration Policy Institute in Washington. “Without additional funding to implement this, we’re going to be left with the same challenges that past refugee restrictions have faced.”
Migrants who say they fear persecution if returned to Mexico will remain covered by the Convention Against Torture and other protections available under U.S. law, according to officials with knowledge of Biden’s executive order.
Mexico also limits the number of non-Mexican immigrants it will accept from the United States.
The president is in a political bind over the border as the issue becomes increasingly important to voters: The migration surge during his presidency has waxed and waned but often topped record levels and remains one of his biggest political liabilities, strategists say.
Trump has continuously attacked Biden’s “open borders” policies and what he calls “Biden’s immigration crimes”, vowing to carry out a drastic crackdown if he wins the presidential election.
“Our borders will be closed soon,” Trump said Friday as he lashed out at immigration and the 34 felony convictions for forging business documents handed down against him in a hush money trial in New York.
President Trump similarly tried to cut off immigrants’ access to U.S. asylum protections, but that move was blocked in federal court in 2019. Biden’s order is expected to be challenged on similar grounds.
“We will need to review the executive order before making a decision on the case, but a policy that effectively cuts off asylum would raise clear legal questions, just as it did when the Trump administration tried to end asylum,” ACLU attorney Lee Gelent, who served as lead counsel on many of the challenges to Trump’s policies, said in an interview Monday.
U.S. authorities have tallied nearly 2 million illegal crossings per year along the North-South border since 2021, the highest level ever recorded. Migrants are arriving in record numbers from China, India, Venezuela and dozens of other countries. Migrants are often lured to the U.S. border by Mexican criminal gangs and typically surrender to U.S. border agents and express fear of persecution if deported, the first step in seeking U.S. asylum.
Under Biden’s order, if the number of people crossing the border exceeds a daily threshold, they will no longer be eligible for asylum protection.
Under the current agreement, the United States can send up to 30,000 non-Mexicans back across the border each month, but Mexico generally limits its deportations to Central Americans, Cubans and some Haitians.
Mexican voters on Sunday overwhelmingly elected the country’s first female leader, Claudia Scheinbaum, in a vote widely seen as a referendum on current President Andrés Manuel López Obrador. Scheinbaum, who takes office on Oct. 1, has vowed to continue López Obrador’s cooperation with the United States on immigration.
Biden has increasingly adopted the kind of rhetoric Trump used on immigration, including promising this year to “close” the border if there is an influx of illegal crossers, but he has struggled to find a message that satisfies the diverse voter base he is seeking.
Some liberal lawmakers have criticized Biden for taking an increasingly hardline stance on the border, while immigration activists say he is betraying core American ideals by embracing more humane immigration policies after a tumultuous Trump presidency.
“The current administration’s decision to criminalize immigrants, many of whom are fleeing harm, is deeply disturbing and misjudged,” Sarah M. Rich, senior supervising attorney at the Southern Poverty Law Center, said in a statement.
“Prosecuting people seeking safety in the United States for these immigration violations will victimize immigrant families and communities and lead to even more Black and brown people being incarcerated,” Rich said.
White House officials said President Biden will continue to explore a range of policy options to address the immigration issue.
“While Republicans in Congress have chosen to stand in the way of increased border security, President Biden will not stop fighting to provide Border Patrol and immigration enforcement officers with the resources they need to secure our border,” White House spokesman Angelo Fernandez Hernandez said in a statement.
The expected executive order signals that plans by some Democrats to attack Republicans over the failure of a bipartisan border deal that Trump opposed this year are unlikely to insulate Republicans from fierce attacks on the issue.
When the bill was first rejected by the Senate, Biden vowed to take that message across the nation and blame Trump for urging lawmakers to kill the deal.
Biden emphasized that message in his early campaign speeches, but in recent months his focus has shifted to determining how much he can accomplish without Congress.
White House officials have previously said President Biden cannot unilaterally provide the resources needed for border security and have called for Congress to pass funding and legal changes to create a more orderly immigration system.
