Q&A on Biden’s Border Order

6 months ago 77

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On June 4, President Joe Biden announced new measures to restrict asylum eligibility for those apprehended while trying to enter the U.S. illegally across the southern border.

As we’ve reported, apprehensions of those crossing illegally have gone up significantly during his presidency. Behind the increase is a spike in migrants seeking asylum. While asylum application figures aren’t broken down by how immigrants enter the country, the overall statistics show nearly 89,000 asylum applications in the U.S. in fiscal 2021; in fiscal 2023, the figure was nearly 479,000.

Less than 15% of those seeking asylum were ultimately granted it in fiscal years 2022 and 2023, according to Justice Department statistics. But all of the applications have created a growing backlog of cases, which can take several years to get to court.

Biden issued a proclamation to implement steps to decrease such crossings and ease the load of processing asylum applications. While proclamations are often ceremonial declarations, this one contained specific changes to immigration procedures that are destined to be challenged in court.

Here, we answer several questions about Biden’s action.

What’s in Biden’s border proclamation?

Biden’s order seeks to reduce the flow of people trying to cross the border illegally by suspending the entry of certain migrants and steering them toward a legal means of entry.

The order, as the Department of Homeland Security explains in a June 4 fact sheet, “generally restricts asylum eligibility” when the number of people apprehended crossing the southern border illegally reaches a daily average of 2,500 encounters or more for seven straight days. For context, apprehensions averaged nearly 4,300 a day in April, according to the most recent U.S. Customs and Border Protection data.

Some — but not all — of those who are apprehended during this period of high border encounters will be denied asylum eligibility and “promptly removed,” the DHS fact sheet says.

The DHS spells out those who are exempt from the policy: Lawful permanent residents, unaccompanied children, victims of “a severe form of trafficking,” “noncitizens with a valid visa or other lawful permission to enter the United States,” and noncitizens who enter the U.S. at a legal port of entry using a DHS-approved process, such as CBP One — an app that in January 2023 began accepting appointments for a limited number of migrants who are in Mexico and want to request asylum or parole.

There is also a broader exemption for people who “express a fear of return to their country or country of removal, a fear of persecution or torture, or an intention to apply for asylum” if they “establish a reasonable probability of persecution or torture in the country of removal.”

Currently, Border Patrol agents ask those apprehended at the border if they have a fear of returning to their home countries and want to apply for asylum, Colleen Putzel-Kavanaugh, an associate policy analyst with the Migration Policy Institute’s U.S. Immigration Policy Program, told us in a phone interview. But CBP will not ask such questions and those apprehended must affirmatively state that they wish to apply for asylum before they are referred to an asylum officer, she said. It’s known as the “shout test,” she added.

Those who are removed when this new policy is in effect will be barred from entering the U.S. for five years and may be subject to criminal prosecution.

The restrictions will be lifted 14 calendar days after the daily average of people apprehended crossing the border illegally drops to 1,500 encounters or less for seven consecutive days. The daily monthly average hasn’t been that low since July 2020.

What reason did Biden give for acting?

In his proclamation, Biden cited a need to “address the historic levels of migration and more efficiently process migrants arriving at the southern border given current resource levels.” He called out Congress for not passing immigration legislation, including a bipartisan Senate deal that was unveiled in February but failed to advance.

“Our broken immigration system is directly contributing to the historic migration we are seeing throughout the Western Hemisphere, exacerbated by poor economic conditions, natural disasters, and general insecurity, and this fact, combined with inadequate resources to keep pace, has once again severely strained our capacity at the border,” Biden’s proclamation said. “The result is a vicious cycle in which our United States Border Patrol facilities constantly risk overcrowding, our detention system has regularly been at capacity, and our asylum system remains backlogged and cannot deliver timely decisions, all of which spurs more people to make the dangerous journey north to the United States.”

The immigration court backlog was nearly 3.6 million cases as of April, according to figures compiled by Transactional Records Access Clearinghouse, a nonpartisan research center at Syracuse University.

Biden criticized Congress, saying there had been a “decades-long failure … to address the problem through systemic reform and adequate funding” and specifically cited “Congress’s failure to pass the bipartisan legislative proposal.” As a result, he said, “I must exercise my executive authorities to meet the moment.”

How many people are crossing the border illegally now?

As of April, there had been 531,208 encounters of people who illegally crossed the southern border in 2024, according to the most recent figures published by CBP. That is an average of 132,802 encounters a month, or about 4,390 encounters a day.

Last month, CBS News reported that during the first three weeks of May, apprehensions by U.S. Border Patrol agents were down to 3,700 a day, based on internal government data. Complete figures for the month should be publicly available later in June.

The number of encounters recorded by the Border Patrol through the first four months of this year already was lower than in the same periods under Biden in 2022 and 2023, when there were 721,732 and 607,627 apprehensions of illegal border crossers, respectively. Those totals do not necessarily equal the number of people who illegally entered because some people may have been encountered more than once due to repeat attempts to enter the country.

What impact will the order have on illegal crossings?

It’s unclear how effective the order will be. Putzel-Kavanaugh, of the Migration Policy Institute, is skeptical that the policy — which DHS called temporary — will be lifted any time soon.

“Right now, apprehensions are around 4,000 per day – so to get to 1,500 would mean apprehensions need to be cut by more than half,” she said. “l can’t imagine that would happen any time soon.”

In a June 5 analysis of the new policy, the American Immigration Council said it’s “highly unlikely that the current emergency will be lifted in the near future,” citing statistics that show “monthly average border crossings have exceeded 1,500 in every month” but one in five of the last six fiscal years.

Putzel-Kavanaugh does, however, expect that initially there will be some reduction in illegal border crossings.

“Migrants who are either deciding to travel [to the U.S.] or are currently in Mexico between the [legal] ports [of entry] … are likely to pause and wait and see what the impacts will be on the ground,” she said.

She also said they may try to choose a legal way to enter — which is what the administration wants.

“The idea is to encourage people to use the lawful pathways,” she said. “We could see an increase in CBP One. The effect of that could be that people wait longer for appointments.”

As we have written before, DHS describes CBP One as a “safer, humane, and more orderly” way of processing migrants. Those with CBP One appointments are screened and could be subject to expedited removal. But it currently takes weeks or months to get an appointment, and increasing the number of appointments will add to the delays, Putzel-Kavanaugh said.

Appointments are capped at 1,450 per day — which is 529,250 a year. For calendar year 2023, 413,300 people scheduled such appointments, CBP says.

“Those who seek to come to the United States legally, for example, by making an appointment and coming to a port of entry, asylum will still be available to them,” Biden said when announcing his proclamation in a press conference on June 4. “But if an individual chooses not to use our legal pathways, if they choose to come without permission and against the law, they’ll be restricted from receiving asylum and staying in the United States.”

How will migrants be ‘promptly removed’?

At a June 4 background briefing for reporters, a senior administration official said that at times of high border crossings “individuals who do not manifest a fear will be immediately removable, and we anticipate that we will be removing those individuals in a matter of days, if not hours.”

But experts are skeptical that the administration has the resources to carry out the job.

“The new regulation presumes that the government will have the capacity to subject everyone to expedited removal,” the American Immigration Council’s analysis said. “This would require the government to not only have enough asylum officers to screen everyone who requests an interview through a ‘shout test’ and conduct fear interviews that (because they require more from the respondent) may take longer than existing interviews do, but also have the detention beds to hold them during this process and then enough deportation flights to return them to their home countries.”

Also, it isn’t easy to remove migrants who have traveled from countries other than Mexico and those in Central America, Putzel-Kavanaugh said. “Trying to organize removals for people all over the world is an incredibly time-consuming task,” she said, adding that some countries aren’t willing to accept the migrants and other countries don’t have the resources to do it well or quickly.

On May 16, the DHS and the Department of Justice announced what they called a Recent Arrivals Docket, or RA Docket, process. The system, which is now in place in five major cities, seeks “to accelerate asylum proceedings” for single adults “so that individuals who do not qualify for relief can be removed more quickly and those who do qualify can achieve protection sooner,” Secretary of Homeland Security Alejandro Mayorkas said.

The goal is to make asylum decisions in 180 days, instead of years, the joint announcement said.

Putzel-Kavanaugh said it is too soon to know how well the RA Docket process will work, but she believes the administration’s move toward such expedited removal processes will make it difficult for migrants to receive due process. “It raises questions about people being able to access an attorney, get documents together to prove their case – all of the due process questions.”

What impact will it have on those seeking asylum?

The process for migrants to show that they are eligible for asylum during the initial screening process will be more difficult during periods of high border encounters. It is the second time in two years that the administration has tightened the rules, the American Immigration Council said in its analysis.

American Immigration Council, June 5: Before 2023, the standard for passing a screening interview for asylum was demonstrating “credible fear” of persecution—defined as a “significant possibility” (at least a 10 percent chance) that their asylum claim would prevail. Under the Circumvention of Lawful Pathways rule enacted in May 2023, most people who cross between ports of entry and are screened by an asylum officer are subjected to a higher standard known as “reasonable possibility.”

Under the new regulation, whenever the emergency suspension of entry is in effect, this standard is replaced with a completely new standard called “reasonable probability”—which the regulation defines as “substantially higher” than reasonable possibility, and “somewhat lower” than a “more likely than not” standard.

Those who are deemed ineligible for asylum can still remain in the U.S. under international protections — specifically under the Convention Against Torture and withholding of removal, which is a form of relief for migrants who fear persecution, as explained by the U.S. Citizenship and Immigration Services.

However, the Biden administration has also tightened those standards, the senior official said in the June 4 press briefing.

“I think individuals who do manifest a fear and are ineligible for asylum as a result of the rules measures will be screened for our international obligations under withholding of removal and the Convention Against Torture at a ‘reasonable probability’ standard, which will be a substantially higher standard than the ‘significant possibility’ standard that is being used today, while still somewhat below the ultimate merits standard of ‘more likely than not,'” the senior official said.

“I think the bottom line is that the standard will be significantly higher,” the official added. “And so, we do anticipate that fewer individuals will be screened in as a result.”

Those who will be unaffected by the new rules include children who illegally enter the U.S. without a parent, adult family member or guardian. But relatively few border crossers are unaccompanied children. In fiscal year 2023, they made up only 5.3% of border encounters, according to CBP.

Human trafficking victims, who are also exempt from the new rules and eligible for a so-called T visa, make up an even smaller number.

“In FY 2023, USCIS received its highest number of T visa applications (8,598) in a single year and approved the highest number of T visa applications in a single year (2,181),” USCIS said in an April report to Congress. In addition, 1,495 eligible family members of trafficking victims were also granted T visas.

Under what legal authority did Biden act?

Biden primarily relies on section 212(f) of the Immigration and Nationality Act.

Section 212(f) of the INA reads: “[W]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

An “alien” under U.S. code is anyone who isn’t a citizen or national of the U.S.

Biden’s proclamation says that “absent the measures set forth in this proclamation, the entry into the United States of persons described” in the proclamation “would be detrimental to the interests of the United States.”

The proclamation also cites section 215(a) of the INA, which concerns travel restrictions, and part of the U.S. code that gives the president authority to delegate functions to agency heads. Section 215(a) of the INA says, in part, that it’s unlawful, unless the president orders otherwise, “for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

Will it be challenged in court?

Yes. The American Civil Liberties Union has already said it will challenge Biden’s executive action in court. “It was illegal when Trump did it, and it is no less illegal now,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a press release.

The ACLU and other groups filed suit over an asylum ban instituted by former President Donald Trump’s administration, and the courts blocked Trump’s regulations from taking effect. The ACLU says that ban “took the same approach” as Biden’s action — invoking section 212(f) of the Immigration and Nationality Act. A senior Biden administration official, however, told reporters that there are “humanitarian exceptions” and “important exceptions for individuals entering through lawful pathways” in Biden’s proclamation.

As we’ve explained before, Trump issued a proclamation in November 2018 barring the entry of migrants unless they entered at ports of entry. At the same time, the administration issued regulations making those who entered the U.S. illegally between ports of entry ineligible for asylum.

A federal District Court judge in California halted Trump’s effort; the U.S. Court of Appeals for the 9th Circuit and the Supreme Court both denied the Trump administration’s motions to stop the District Court’s ruling. The appeals court ultimately affirmed the lower court’s order in February 2020.

“The President does not have the authority to close the border under 212(f),” Denise Gilman, co-director of the Immigration Clinic and law professor at the University of Texas at Austin, told us via email when we wrote about this issue in February.

Other provisions in the Immigration and Nationality Act “make very clear that all persons arriving at the border or entering the United States, without regard to status, must be processed for asylum if they indicate a fear of return to their home countries,” Gilman said. “These provisions cannot simply be trumped by 212(f). Under current law, they must be given effect and asylum seekers must be able to present their claims.”

When the bipartisan group of senators released the text of an immigration overhaul bill in February, Trump and other Republicans claimed then that Biden had “the right” to shut down the border, without legislation from Congress. But the claim was dubious, given Trump’s attempt and legal failure to do so.

Now, Biden is trying to implement a version of a border shutdown, with “exceptions” that the administration expects will allow the order to hold up in court.

It’s unclear if that will happen. In a report on Biden’s actions, the American Immigration Council said that whether the 212(f) presidential authority “may be used to address purely domestic policy concerns remains an unsettled area of law.”

“For more than 40 years, U.S. law has been clear: all people physically present or arriving in the United States may seek asylum. No president can erase that law from the books with the stroke of a pen,” Jeremy Robbins, executive director of the American Immigration Council, said in a June 5 press release that noted the “legal uncertainty” around this issue.

How does this compare with the bipartisan plan that Biden supported?

Biden’s action is similar to the border authority provisions of the bipartisan Senate plan that failed in Congress — but differs on the specifics.

The plan, which was unveiled in early February as part of a foreign aid bill, stated that the Department of Homeland Security secretary would automatically activate temporary border emergency authority to prohibit entry of migrants between ports of entry, except for unaccompanied children, if there is an average of 5,000 or more migrant encounters a day over seven consecutive days — or if there are 8,500 or more such encounters on any single day, as we have reported before.

The Homeland Security secretary also would have “discretionary activation” authority if there is an average of 4,000 or more encounters over seven consecutive days. The bill included an exception for migrants who said they had a fear of persecution if returned to their countries, if they demonstrated a “reasonable possibility” of such during an interview with an asylum officer.

As we’ve explained, Biden’s proclamation sets a lower threshold for activating its restrictions on asylum eligibility — a daily average of 2,500 encounters or more for seven straight days.

A major difference between Biden’s proclamation and the Senate bill is that the legislation appropriated money. The bill included funding for more border barriers, expanded detention facilities, and more personnel, including Immigration and Customs Enforcement and Border Patrol agents, asylum officers, and immigration judges.

But getting legislation through Congress is much tougher than issuing a proclamation. The Senate plan faced significant opposition from former President Donald Trump and other Republican leaders. On Feb. 7, the bill failed after all but four Republicans and a few Democrats opposed it, and it failed again in May, when Democrats tried to advance it on a procedural vote.

What’s the reaction of Republicans? Democrats?

Several Republicans, including Trump, have said Biden’s proclamation doesn’t do enough.

On social media, Trump posted a meme, which appears to have been left over from his criticism of the Senate immigration plan, wrongly claiming that Biden’s action “allows at least 5,000 illegal entries per day.” It doesn’t, and neither did the Senate legislation.

As one of the architects of the bill, Republican Sen. James Lankford, said of the measure in February, “It’s not that the first 5,000 [migrants encountered at the border] are released, that’s ridiculous. The first 5,000 we detain, we screen and then we deport. … If we get above 5,000, we just detain and deport.”

Biden’s proclamation set a threshold of 2,500 average encounters. So Trump’s meme is both wrong and outdated.

In a video, also posted on social media, Trump said Biden’s order was “weak,” and claimed: “All he had to do is say, ‘Close the border.’ That’s the power of the presidency.” But, again, Trump tried to shut down the border and was blocked by the courts. (For more on that, see the section above on whether Biden’s proclamation will be challenged in court.)

Trump also wrongly said that “up to 20 million people” had been allowed in under Biden. There’s no evidence for such a figure. We found that from February 2021 through October 2023, 2.5 million people encountered at the southern border had been released into the U.S. with notices to appear in immigration court or report to Immigration and Customs Enforcement in the future, or other classifications, such as parole. That’s according to DHS statistics. There were also an estimated 1.6 million so-called “gotaways,” meaning people who crossed the border by evading the authorities.

Democrats were divided over the president’s plan.

Rep. Pete Aguilar, the chairman of the House Democratic Caucus, told reporters that Biden should “secure our border while opening up more legal pathways” and expressed concern that the proclamation “is just the enforcement only side of the strategy.”

Rep. Pramila Jayapal, the chair of the Congressional Progressive Caucus, was even more critical of the order, saying in a statement that it was “extremely disappointing” and a “dangerous step in the wrong direction.”

“While there are some differences from Trump’s actions, the reality is that this utilizes the same failed enforcement-only approach, penalizes asylum seekers, and furthers a false narrative that these actions will ‘fix’ the border,” she said.

Biden’s proposal received a warmer reception from House members in the New Democrat Coalition, who issued a joint statement saying they were “encouraged” by the order, which they called a “commonsense action to restore order at the southern border.”

Meanwhile, Senate Majority Leader Chuck Schumer, in remarks on the Senate floor, said that “legislation would have been the more effective way to go,” but added that Biden was “left with little choice but to act on his own” because of Republican inaction.

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