WASHINGTON (AP) — The White House told lawmakers that President Joe Biden is preparing to sign an executive order that would halt asylum claims at the U.S.-Mexico border once the average number of daily encounters at ports of entry reaches 2,500. The border would not reopen until that number drops to 1,500, according to several people familiar with the discussions.
The figure of 2,500 means that the implementing regulation could come into force immediately because the daily numbers are now higher.
The Democratic president is expected to announce the measures – his most aggressive unilateral move yet to control the number of refugees at the border – on Tuesday at the White House at an event attended by mayors from the border region.
Five people familiar with Monday’s discussions confirmed the 2,500 figure, while two of the people confirmed the 1,500 figure. The numbers are daily averages over the course of a week. All of the people insisted on anonymity to discuss an executive order that has not yet been released.
While other border activities, such as trade, are expected to continue, the 1,500 encounters threshold that would reopen the border to asylum seekers may be difficult to reach. The last time the daily average dropped to 1,500 encounters was in July 2020, at the height of the COVID-19 pandemic.
Senior White House officials, including Chief of Staff Jeff Zients and Director of Legislative Affairs Shuwanza Goff, have been briefing lawmakers on Capitol Hill on the details of the planned order ahead of its official announcement Tuesday. But some questions remain about how the executive order would work, particularly how much cooperation the U.S. would need from Mexican officials to implement the executive order.
The president has been considering how to proceed on his own for months after a bipartisan bill to restrict asylum at the border failed because Republicans withdrew en masse from the agreement at the urging of Donald Trump, the former president and likely Republican presidential nominee. Biden continues to consider executive action even as illegal crossings at the southern border have been declining for months, thanks in part to increased efforts by Mexico.
Biden administration officials had waited until after Mexico’s presidential election on Sunday to take action on the border. Mexico elected Claudia Sheinbaum, the country’s first female head of government, and Biden said in a statement Monday that he was committed to “advancing the values and interests of both nations for the benefit of our peoples.” The two spoke by phone Monday.
The executive order will allow Biden to declare that he has pushed the limits of his own power after lawmakers, particularly Republicans in Congress, rolled back the toughest border and asylum restrictions in a long time. Biden’s order aims to prevent a potential surge in border encounters that could occur later this year, just before the November election.
“He’s trying to accomplish with this executive order some of what would have been accomplished with the bill, the bipartisan bill that was opposed by Republicans and Donald Trump,” said Senator Dick Durbin, Democrat of Illinois, the second-highest ranking Democrat in the Senate. He said he had been briefed on the impending directive.
For Biden’s executive order, the White House is borrowing some policies directly from that bipartisan Senate border deal, including the idea of limiting asylum applications once the number of encounters reaches a certain number. The administration wants to encourage migrants to apply for asylum at ports of entry by using U.S. Customs and Border Protection’s CBP One app, which schedules about 1,450 appointments a day.
The administration’s lawyers have planned to use the executive powers of Section 212(f) of the Immigration and Nationality Act, which gives the president broad authority to block certain immigrants from entering the U.S. if doing so is deemed “detrimental” to the national interest. It’s the same legal justification Trump used as president for some of his toughest immigration policies.
That’s why interest groups are already preparing to challenge Biden’s immigration order in court.
“We need to review the (executive order) before we can make final decisions on litigation,” said Lee Gelernt, an attorney with the American Civil Liberties Union who led several of the most high-profile lawsuits against Trump’s border policies. “But a policy that effectively closes asylum would raise clear legal issues, just as it did when the Trump administration tried to end asylum.”
Biden will unveil his executive order accompanied by several border region mayors who the White House has invited to the announcement. Texas Mayors John Cowen of Brownsville and Ramiro Garza of Edinburg have both confirmed their invitations, and the office of San Diego Mayor Todd Gloria also said the White House invited the mayor but that he was unable to attend due to scheduling difficulties.
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 giving residents a chance to seek asylum, something lawyers fear he may try to do by invoking Rule 212(f).
The pandemic-era deportation power, known as Title 42, has “a silver lining” for migrants because they can try again without fear of legal consequences, Babaie said. But a formal deportation order would expose them to criminal prosecution if they tried again and would bar them from entering the country legally in the future.
“This is even more extreme than (Title 42) and still puts people in danger,” Babaie said.
—
Associated Press writer Elliot Spagat contributed to this report from San Diego.
Seung Min Kim, Stephen Groves and Colleen Long, The Associated Press
