President Biden issued an executive order on Tuesday that temporarily prevents migrants from seeking asylum at the US-Mexico border as crossings increase, seeking to ease pressure on the country’s immigration system and address a key concern among voters.
The dramatic election-year move is the most restrictive border policy enacted by Mr. Biden, or any other modern Democrat, and heralds efforts in 2018 by President Donald J. Trump to cut immigration that have been blocked in federal court.
The limit starts when the seven-day average for daily crossings reaches 2,500. The daily toll has already exceeded that number, meaning Mr. Biden’s executive order could take effect immediately, allowing border officials to return migrants across the border to Mexico or to their home countries within hours or days.
The border will reopen to asylum seekers only when the number of crossings drops. The number should remain below the daily average of 1,500 for seven consecutive days. The border will reopen to migrants two weeks after that.
White House officials expect the order to be challenged in court. However, the move shows how drastically immigration politics has changed in the United States. Polls suggest there is support in both parties for border measures criticized by Democrats and championed by Mr Trump as the number of people crossing into the country has reached record levels.
There will be limited exceptions, including minors who cross the border on their own, victims of human trafficking and those who use the Customs and Border Protection application to schedule an appointment with a border officer to apply for asylum.
But for the most part, the order suspends longstanding guarantees that anyone entering U.S. soil has the right to seek safe haven. Normally, migrants who claim asylum are released to the United States to await a court appearance, where they can plead their case. But a large backlog means the case can drag on for years.
The executive action represents a bipartisan bill that has some of the most significant border security restrictions Congress has considered in years. But Republicans thwarted the bill in February, saying it was not strong enough. Many people, prompted by Mr. Trump, are not happy to give Mr. Biden a legislative victory in an election year.
“Donald Trump urged them to vote ‘no’ because he is concerned that more border enforcement will damage him politically,” Andrew Bates, a White House spokesman, said in a statement on Tuesday. He added: “The American people want a bipartisan solution to border security — not cynical politics.”
The American Civil Liberties Union led the charge against the Trump administration’s efforts to block asylum in 2018, leading to the policy being halted by a federal court. The group has signaled it is prepared to challenge any order restricting asylum at the border.
Immigration advocates and some progressive Democrats have expressed concern that Mr. Biden is abandoning his promise to rebuild the asylum system.
“It’s a Trump-like move that will drive people farther across the border and only strengthen the power of smuggling networks,” said Kevin Appleby, senior fellow for policy at the New York Center for Migration Studies. “It also violates domestic and international law.”
Tuesday’s decision was a sharp turnaround for Mr. Biden, who came to office attacking Mr. Trump over his efforts to limit asylum. During the 2019 debate, Mr. Biden, who went on to run against Mr. Trump for the first time, blasted his rival’s policies.
“This is the first president in the history of the United States that anyone seeking asylum has to do it in another country,” Mr. Biden said at the time.
Mr Trump has tried several times to close the US border to asylum seekers, only succeeding in 2020 when he used Covid-era emergency rules to close the border to most migrants.
In a phone call with reporters, Biden administration officials considered that the president’s executive order was comparable to Mr. Trump’s actions. He insisted that Mr. Biden’s administration would only turn back asylum seekers during the crossing.
Immigration has proven to be a major political vulnerability for Mr. Biden, reaching a crisis in December, when about 10,000 people a day entered the United States.
Biden administration officials, panicked by the numbers, are pushing Mexico to do more to curb migration. Mexican officials began using charter flights and buses to move migrants deeper south and away from the United States.
The number of people crossing has fallen since then, although the numbers are still high. On Sunday, more than 3,500 people crossed without authorization, in line with last week’s trend, according to people familiar with the data.
Despite the executive order, migrants can still seek other protections designed for those who can prove they will be tortured in their home country. But that screening has a higher bar than asylum and as a result, administration officials say they don’t expect many migrants to be screened into the United States.
Those who cross illegally and do not qualify for these other protections face a five-year bar from entering the United States.
White House officials believe the order presents an opportunity for Mr. Biden to take on the Republican task of undermining the bipartisan bill. The legislation would also provide billions to the Department of Homeland Security for more border officers and immigration judges.
Mr. Biden cannot provide these resources through executive action.
The order also carries some political risks. Republicans questioned why Mr. Biden did not act unilaterally on the border sooner. In January, he told reporters that he had “done everything he could” on the border and needed help from Congress.
“The American people know better,” Speaker Mike Johnson, Republican of Louisiana, wrote in a social media post on Monday.
As Mr. Biden weighs whether to take executive action in recent months, his administration has taken smaller steps to try to control the backlog.
In May, the administration proposed rule changes that would allow officers to quickly identify people who are ineligible for asylum, such as those who have been convicted of serious crimes. Now, they can be allowed into the country and wait months, or often years, for the asylum process. The proposal must go through a 30-day public comment period.
The US Citizenship and Immigration Services also issued a new policy in May instructing asylum officers to consider whether applicants can seek protection in their own countries before coming to the United States.