According to several individuals familiar with the discussions, the White House is informing lawmakers that President Joe Biden is set to approve an executive order that will halt asylum requests at the U.S.-Mexico border when the daily encounters reach 2,500 between ports of entry. The order will allow for the reopening of the border once the number decreases to 1,500.
The border could be closed immediately to migrants seeking asylum due to the significant impact of the 2,500 figure, as the current daily numbers exceed this threshold.
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The Democratic president is scheduled to reveal his most forceful unilateral move to limit border numbers yet during a White House event on Tuesday, to which border mayors are invited.
Five people acquainted with Monday’s meetings confirmed the 2,500 figure, while two confirmed the 1,500 amount. The data are daily averages over a week. When discussing an executive order that is not yet public, everyone insisted on anonymity.
While we expect other border activities like trade to continue, meeting the 1,500 threshold for the reopening of the frontier for asylum seekers may prove challenging. The last time the daily average fell to 1,500 interactions was in July 2020, during the peak of the COVID-19 outbreak.
Senior White House officials, including chief of staff Jeff Zients and legislative affairs director Shuwanza Goff, have been briefing lawmakers on Capitol Hill on the draft order’s details ahead of its formal release Tuesday. However, significant issues remain regarding the implementation of the executive order, particularly the level of cooperation the United States would require from Mexican officials to carry it out.
The president has been deliberating for months on how to act on his own after bipartisan legislation to limit asylum at the border failed because Republicans defected in large numbers at the urging of Donald Trump, the former president and presumptive Republican presidential nominee. Biden continued to ponder executive action despite the fact that the number of illegal crossings at the southern border had been declining for months, thanks in part to Mexico’s increased efforts.
Officials from the Biden administration delayed taking action on the US president’s border policies until after Sunday’s presidential elections in Mexico. Biden stated in a statement on Monday that he was committed to “advancing the values and interests of both our nations to the benefit of our peoples,” following Mexico’s election of Claudia Sheinbaum as the country’s first female leader. The two met on the phone Monday, but White House press secretary Karine Jean-Pierre would like to know if they discussed the planned order.
“We continue to look at all options on the table,” Jean-Pierre told reporters aboard Air Force One on Monday evening.
The executive action will allow Biden to claim that he has exceeded his own authority after lawmakers, notably congressional Republicans, blocked what would have been the most stringent border and asylum restrictions in years. Biden’s order aims to avert any possible surge in border interactions that might transpire later this year, nearing the November elections.
The White House is implementing some provisions directly from the bipartisan Senate border compromise in Biden’s executive order, including the idea of limiting asylum requests once the number of encounters reaches a particular threshold. The administration hopes to encourage migrants to claim asylum at ports of entry by utilizing the CBP One app, which sets approximately 1,450 appointments every day.
Section 212(f) of the Immigration and Nationality Act, which grants a president broad authority to exclude certain immigrants from entering the United States if deemed “detrimental” to the national interest, has been a target for administration lawyers. It is the same legal argument that Trump used to justify some of his most stringent immigration policies as president.
Advocacy organizations are planning to challenge Biden’s immigration order in court.
“We will need to review the executive order before making final litigation decisions,” said Lee Gelernt, an American Civil Liberties Union attorney who has led several high-profile challenges to Trump’s border policies. “But a policy that effectively shuts down asylum would raise clear legal problems, just as itย did when the Trump administration tried to end asylum.”
Expect many Democratic members to voice their opposition to the White House. California Sen. Alex Padilla, a vocal opponent of the Senate’s last border plan, said the pending executive order was “just not the solution we need, and it’s very incomplete as a strategy.”
The White House briefed Padilla on the proposal, and he prefers a strategy that collaborates with governments throughout Latin America to address the poverty and upheaval that drive migration to the United States. In recent weeks, Padilla has also urged the White House for executive actions that favor immigrants, and he has received the response, “We’re working on it.”
Biden will issue his executive order in front of a group of border mayors summoned by the White House. The White House confirmed the invitations to Texas Mayors John Cowen of Brownsville and Ramiro Garza of Edinburg, while the office of San Diego Mayor Todd Gloria claimed the mayor received an invitation from the White House but was unable to attend due to schedule conflicts.
After learning about the plan, Texas Democrat Rep. Henry Cuellar expressed his wish that the White House had taken executive action sooner and stressed the importance of Mexico’s cooperation as the administration implements the order.
“If you think about the logistics, where else can they go?” Cuellar spoke. “If they aren’t going to let them in, where will they go?” Do they repatriate them (to Mexico), or do they deport as many as possible? We did increase funding for ICE (U.S. Immigration and Customs Enforcement) so that they could deport people, but the simplest solution is to simply return them to Mexico. You need Mexico’s help to make this work.”
Jennifer Babaie, an attorney with the Las Americas Immigrant Advocacy Center in El Paso, Texas, said she would be concerned if Biden issued formal deportation orders without providing an opportunity to claim asylum. Advocates are concerned that he may try this under the 212(f) provision.
Babaie stated that the pandemic-era expulsion authority known as Title 42 offered “a silver lining” for migrants since it allowed them to try again without fear of legal repercussions. However, a formal deportation order would subject them to felony prosecution if they attempted to re-enter the nation, as well as barring them from legally returning in the future.
“This is even more extreme than Title 42, while still putting people in harm’s way,” Babaie stated.
