The move has been under consideration by the administration since the failure of bipartisan border legislation this year that would have enacted a similar trigger to shut off asylum access at times when U.S. authorities become overwhelmed. People with knowledge of the plans said they expected the cap to be set at a daily average of 2,500 illegal crossings. Standard asylum processing would resume when the number drops below 1,500 crossings, an official said.
Illegal crossings along the U.S.-Mexico border have averaged more than 3,500 in recent weeks, according to the latest government data, so Biden’s order could have immediate effects.
During the peak of the coronavirus pandemic, U.S. authorities used a public health emergency to rapidly “expel” migrants and turn away asylum seekers who arrived illegally. Officials said Biden’s expected order will operate similarly, while agents at the border will continue to face limitations, including a lack of detention space, transportation capacity and asylum officers.
The failed border legislation would have provided billions in additional funds for deportation capacity and asylum processing, but Republican lawmakers spurned the bill after former president and presumptive Republican nominee Donald Trump came out against it.
Biden has already implemented measures to restrict asylum claims of migrants who cross into the United States illegally, but many continue to be released into the United States because border authorities lack the capacity to detain, screen or deport them. In other cases, migrants’ home countries won’t take them back or cooperate with U.S. authorities on deportations.
“The big question for me is whether this will come with additional resources,” said Kathleen Bush-Joseph, an attorney and analyst at the nonpartisan Migration Policy Institute in Washington. “Without additional dollars to implement this, the same challenges will remain that each of the past asylum restrictions have faced.”
Migrants who state a fear of persecution if returned to Mexico will remain eligible under the Convention against Torture and other protections afforded by U.S. law, according to officials with knowledge of Biden’s order.
Mexico also places limits on the number of non-Mexican migrants it will accept from the United States.
The president has been in a political bind over the border, as the issue has become increasingly important for voters. The surge of migration during his term, which has ebbed and flowed but often surpassed record levels, remains one of his largest political liabilities, according to strategists.
Trump has continuously attacked him for what he has described as “open border” policies and “Biden migrant crime,” pledging to enact a sweeping crackdown if he wins the presidency.
“Our borders will be closed very soon,” Trump said Friday, in remarks during which he railed against immigration and his 34 felony convictions for falsifying business documents in the New York hush money trial against him.
Trump made a similar attempt to cut off migrants’ access to U.S. asylum protections, but the measures were 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 litigation decisions, but any policy that effectively shuts off asylum would raise obvious legal problems, just as it did when the Trump administration tried to end asylum,” said Lee Gelernt, the ACLU attorney who was lead counsel on many challenges to Trump’s policies, in an interview Monday.
U.S. authorities have tallied about 2 million illegal crossings per year along the southern border since 2021, the highest levels ever, and migrants have been arriving in record numbers from China, India, Venezuela and dozens of other countries. Often guided to the U.S. border by criminal organizations in Mexico, the migrants typically surrender to U.S. border agents and express a fear of persecution if returned — the first step in seeking U.S. asylum.
Biden’s order would render them ineligible for asylum protections if crossings exceed the daily threshold.
Current agreements allow the United States to send up to 30,000 non-Mexicans back across the border each month, but Mexico has generally limited returns to Central Americans, Cubans and some Haitians.
Mexican voters elected Claudia Sheinbaum, the country’s first female leader, by a landslide margin Sunday in a vote that was widely viewed as a referendum on current President Andrés Manuel López Obrador. Sheinbaum, who will be inaugurated Oct. 1, has vowed to continue López Obrador’s cooperation with the United States on migration.
While Biden has increasingly adopted the kind of language embraced by Trump on immigration — including pledging this year to “shut down” the border if it becomes overwhelmed by unauthorized crossings — he has struggled to find a message that can satisfy the diverse coalition of voters he is courting.
Several liberal lawmakers have criticized Biden for his increasingly tough stance on the border, and pro-immigration activists have accused him of betraying core American ideals to adopt more humane immigration policies after Trump’s turbulent term.
“The decision by this administration to criminalize migrants — many of whom are fleeing harm — is deeply disturbing and misguided,” Sarah M. Rich, senior supervising attorney at the Southern Poverty Law Center, said in a statement.
“Prosecuting people seeking safety in the U.S. for these immigration violations will lead to more Black and Brown people being incarcerated at the expense of immigrant families and communities,” Rich said.
White House officials said Biden will continue to explore various policy options to address the migration challenge.
“While Congressional Republicans chose to stand in the way of additional border enforcement, President Biden will not stop fighting to deliver the resources that border and immigration personnel need to secure our border,” said Angelo Fernández Hernández, a White House spokesman, in a statement.
The expected executive order is a signal that the plan of some Democrats to hammer Republicans over the failure of the bipartisan border deal opposed by Trump this year is unlikely to shield them from a barrage of attacks over the issue.
When the bill failed the first time in the Senate, Biden pledged to take the message across the country and blame Trump for encouraging lawmakers to kill the agreement.
While Biden initially pushed that message in campaign speeches, his focus in recent months has shifted toward figuring out how much he can accomplish without Congress.
White House officials have long said Biden cannot unilaterally provide the resources necessary to secure the border, calling on Congress to pass funding and statutory changes that would create a more orderly migration system.
