Biden Imposes Sweeping Asylum Ban at US-Mexico Border

"Socalj" for Borderland Beat

From a Reuters Article By Ted Hesson and Mica Rosenberg

U.S. President Joe Biden on Tuesday instituted a broad asylum ban on migrants caught illegally crossing the U.S.-Mexico border, a major enforcement move in the run-up to November elections that will decide control of the White House.

Migrants caught crossing illegally could be quickly deported or turned back to Mexico under the measure, which will take effect just after midnight. There will be exceptions for unaccompanied children, people who face serious medical or safety threats and victims of trafficking, the U.S. Department of Homeland Security said.

Biden, a Democrat, has toughened his approach to border security as immigration has emerged as a top issue for Americans in the run-up to Nov. 5 elections where he will face Republican Donald Trump, who made a hardline stance on immigration a centerpiece of his administration and vowed a wide-ranging crackdown if reelected.

Biden took office in 2021 vowing to reverse some of Trump's restrictive immigration policies but grappled with record levels of migrants caught crossing illegally, a trend that has strained U.S. border authorities and cities receiving new arrivals.

During a White House press conference explaining the proclamation, Biden said asylum access would remain available to migrants who registered for an appointment using an app known as CBP One or used other legal pathways instead of crossing illegally.

"This action will help us gain control of our border and restore order into the process," Biden said. "This ban will remain in place until the number of people trying to enter illegally is reduced to a level that our system can effectively manage."

Even as Biden rolled out new restrictions, he criticized Trump's most controversial policies, including separating migrant families at the border and comments that immigrants in the U.S. illegally were "poisoning the blood of our country."

"I will never demonize immigrants," Biden said.

When it comes to immigration policy, registered voters prefer Trump over Biden by a 17% margin, according to a Reuters/Ipsos poll conducted in mid-May.

Executive Proclaimation

• Section 1. Suspension and Limitation on Entry. The entry of any noncitizen into the United States across the southern border is hereby suspended and limited, subject to section 3 of this proclamation. This suspension and limitation on entry shall be effective at 12:01 a.m. eastern daylight time on June 5, 2024. The suspension and limitation directed in this proclamation shall be discontinued pursuant to subsection 2(a) of this proclamation, subject to subsection 2(b) of this proclamation.

 

• Sec. 2. Applicability of Suspension and Limitation on Entry. (a) The Secretary of Homeland Security shall monitor the number of daily encounters and, subject to subsection (b) of this section, the suspension and limitation on entry pursuant to section 1 of this proclamation shall be discontinued at 12:01 a.m. eastern time on the date that is 14 calendar days after the Secretary makes a factual determination that there has been a 7-consecutive-calendar-day average of less than 1,500 encounters, not including encounters described in subsection 4(a)(iii) of this proclamation 

• (b) Notwithstanding a factual determination made under subsection (a) of this section, the suspension and limitation on entry pursuant to section 1 of this proclamation shall apply at 12:01 a.m. eastern time on the calendar day immediately after the Secretary has made a factual determination that there has been a 7-consecutive-calendar-day average of 2,500 encounters or more, not including encounters described in subsection 4(a)(iii) of this proclamation, until such suspension and limitation on entry is discontinued pursuant to subsection (a) of this section.

• (c) For purposes of subsection (a) and subsection (b) of this section, unaccompanied children (as defined in section 279(g)(2) of title 6, United States Code) from non-contiguous countries shall not be included in calculating the number of encounters.

 

• Sec. 3. Scope and Implementation of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply across the southern border to noncitizens, other than those described in subsection (b) of this section, during such times that the suspension and limitation on entry is in effect. 

• (b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:
• (i) any noncitizen national of the United States;
• (ii) any lawful permanent resident of the United States;
• (iii) any unaccompanied child as defined in section 279(g)(2) of title 6, United States Code;
• (iv) any noncitizen who is determined to be a victim of a severe form of trafficking in persons, as defined in section 7102(16) of title 22, United States Code;
• (v) any noncitizen who has a valid visa or other lawful permission to seek entry or admission into the United States, or presents at a port of entry pursuant to a pre-scheduled time and place, including:
• (A) members of the United States Armed Forces and associated personnel, United States Government employees or contractors on orders abroad, or their accompanying family members who are on their orders or are members of their household;
• (B) noncitizens who hold a valid visa or who have all necessary documents required for admission consistent with the requirements of section 1182(a)(7) of title 8, United States Code, upon arrival at a port of entry;
• (C) noncitizens traveling pursuant to the visa waiver program as described in section 1187 of title 8, United States Code; and
• (D) noncitizens who arrive in the United States at a southwest land border port of entry pursuant to a process the Secretary of Homeland Security determines is appropriate to allow for the safe and orderly entry of noncitizens into the United States;
• (vi) any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter; and
• (vii) any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.
• (c) An exception under subsection (b) of this section from the suspension and limitation on entry pursuant to section 1 of this proclamation does not affect a noncitizen’s inadmissibility under the Immigration and Nationality Act for a reason other than the applicability of this proclamation.
• (d) The Secretary of Homeland Security and the Attorney General are authorized to issue any instructions, orders, or regulations as may be necessary to implement this proclamation, including the determination of the exceptions in subsection (b) of this section, and shall promptly consider issuing any instructions, orders, or regulations as may be necessary to address the circumstances at the southern border, including any additional limitations and conditions on asylum eligibility that they determine are warranted, subject to any exceptions that they determine are warranted.
• (e) Nothing in this proclamation shall limit the statutory processes afforded to unaccompanied children upon entering the United States under section 279 of title 6, United States Code, and section 1232 of title 8, United States Code.

 

• Sec. 4. Definitions. (a) The term “encounter” refers to a noncitizen who:
• (i) is physically apprehended by CBP immigration officers within 100 miles of the United States southwest land border during the 14-day period immediately after entry between ports of entry;
• (ii) is physically apprehended by DHS personnel at the southern coastal borders during the 14-day period immediately after entry between ports of entry; or
• (iii) is determined to be inadmissible at a southwest land border port of entry.
• (b) The term “southern coastal borders” means all maritime borders in Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime borders proximate to the southwest land border, the Gulf of Mexico, and the southern Pacific coast in California; and all maritime borders of the United States Virgin Islands and Puerto Rico.
• (c) The term “southwest land border” means the entirety of the United States land border with Mexico.
• (d) The term “southern border” means the southwest land border and the southern coastal borders.

 

• Sec. 5. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States. Accordingly, if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby.

 

• Sec. 6. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:
• (i) the authority granted by law to an executive department or agency, or the head thereof; or
• (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
• (b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
• (c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

 

Questions Remain

The new asylum ban becomes active when the daily average of border arrests tops 2,500 over a week, and figures are currently higher than that, officials said on a call with reporters, requesting anonymity as a condition of the call.

U.S. border arrests averaged 4,300 per day in April, according to the most recent government statistics available.

The ban will be paused when arrests drop below an average of 1,500 per day for 3 weeks. The last time crossings fell to that level was in the early months of the COVID-19 pandemic in July 2020 when global travel was at historic lows.

Key operational questions about the measure's implementation remained unclear, including how the administration would quickly deport migrants from far-away and uncooperative countries and how many non-Mexican migrants Mexico would accept under the new enforcement regime.

The new restrictions resemble similar policies implemented by Trump and use a legal statute known as 212(f) that served as the underpinning for Trump's travel bans blocking people from several majority-Muslim nations and other countries.

The Biden ban was attacked by critics on both sides of the political spectrum on Tuesday.

Lee Gelernt, an attorney for the American Civil Liberties Union, said they intended to sue over the new restrictions. The group and other immigrant advocacy organizations have criticized Biden for adopting Trump-like policies and backtracking on U.S. legal obligations to asylum seekers.

In advance of the announcement, Trump's campaign issued a statement criticizing Biden for high levels of illegal immigration and said the move to exempt unaccompanied minors would encourage child trafficking.

Republicans also slammed Biden's moves as politically motivated and insufficient.

Inaction in Congress

Biden has pushed unsuccessfully for months to pass a Senate bill crafted by a bipartisan group that would toughen border security but Republicans rejected it after Trump came out in opposition.
In addition to the latest measure, the Biden administration has taken a number of steps over the past year to toughen the asylum process, including issuing a regulation in May 2023 that heightened the standard for an initial asylum claim.

The number of migrants caught crossing the U.S.-Mexico border illegally dropped in recent months, a trend U.S. officials partly attribute to increased Mexican enforcement.

Claudia Sheinbaum was elected as Mexico's first female president in a landslide victory on Sunday and will take office on Oct. 1. Biden's border restrictions could put pressure on Sheinbaum, the successor to current President Andres Manuel Lopez Obrador, to keep illegal border crossings down.

Biden thanked Lopez Obrador on a phone call Tuesday for his continued cooperation on immigration and Lopez Obrador at his daily press conference said the two countries "have been making good progress" on the issue.

Enrique Lucero, the director of migrant affairs in Tijuana, Mexico warned the new measures could overwhelm migrant shelters as more people will be stuck waiting or returned. He said he thought desperate people would continue to find ways to cross the border illegally.

"The question is where are all those people going to go?" Lucero said. "Many will end up on the streets or prey to traffickers."

Across the border from Tijuana in San Diego, California, a 31-year-old Colombian man who identified himself as John said he spent eight days and 20 million Colombian pesos ($5,200) to cross into the U.S. and seek asylum. He said his immigration court hearing is scheduled for April 25.

"It would have been very painful to have to start over, in debt," John said. "People give up everything they have."

Sources Reuters, Whitehouse