Unpacking Biden’s border crackdown

President Joe Biden’s border announcement last week caught Jennie Murray off guard. As president and CEO of the National Immigration Forum, Murray works to anticipate upcoming immigration policy changes and understand the ins and outs of the ever-shifting rules and regulations. “We didn’t have that much notice,” she said. “This one came pretty quickly.”

Biden stood at a podium on June 4 between two blue screens displaying “Securing Our Border” in large, white letters as he outlined new restrictions on the number of asylum-seekers the United States will accept. “Today I’m announcing actions to bar migrants who cross our southern border unlawfully from receiving asylum,” he said.

The measure, which went into effect hours after Biden announced it, bans immigrants who cross the border illegally from asking for asylum during high-volume illegal entry periods, but it’s unclear whether the administration is able to detain and deport the illegal immigrants violating the ban. Overwhelmed asylum officers and a lack of detention capacity and deportation flights means authorities might still release thousands of illegal immigrants into the country.

Under the new policy, once illegal crossings exceed an average of 2,500 per day for seven days in a row, immigrants will no longer be allowed to ask for asylum after crossing the border without an appointment. The rule provides a few exceptions for immigrants in medical distress or at risk of being trafficked. The ban will remain in place until average daily illegal crossings dip down to 1,500 for at least seven consecutive days. Then, border officials must wait an additional 14 days before they start processing asylum claims between ports of entries.

To claim asylum, an immigrant must prove he or she has a credible fear of persecution because of race, religion, political opinion, nationality, or inclusion in a particular social group. Asylum laws exist to protect people who are targeted for personal characteristics or beliefs—not those who want to escape generalized violence or poverty. But that line is blurry.

And because of an immigration court backlog of over 3 million cases, many immigrants will wait at least six years for a decision on whether they can become permanent residents or must return to their countries of origin. Personnel and resource cuts, along with restrictions to legal immigration during the pandemic, fueled the logjam, said Murray. “Asylum was never built for this. This is not what asylum is supposed to be,” she said.

An average of more than 2,500 immigrants have crossed the border illegally every day since the month Biden took office in January 2021. Daily crossings haven’t dipped below 1,500 since July 2020. Though encounters with illegal immigrants fell after an all-time high in December 2023, they still averaged 3,500 per day between May 12 and May 31, according to U.S. Customs and Border Protection data. That makes it likely the ban will remain in place for months.

The 2,500-per-day limit on people who can cross illegally between ports of entry to seek asylum surprised Murray. “This is a reduction beyond what we had assumed,” she said, noting it’s much lower than the number proposed in the failed bill that Sens. James Lankford, R-Okla., and Kyrsten Sinema, I-Ariz., spearheaded in February. That bill would have triggered an asylum ban if more than 5,000 immigrants per day attempted to cross the border illegally.

Under the new policy, authorities will immediately place immigrants who cross the southern border into expedited removal proceedings, a process which allows frontline immigration officials to deport certain noncitizens without a hearing. Migrants in the expedited removal process still have access to a hearing with an asylum officer, but under the new rule, they must request it themselves, since immigration officials are no longer required to ask whether a migrant fears persecution or torture in their home country. The administration raised the standard for what qualifies as a credible fear of persecution or torture last May under the Circumvention of Lawful Pathways rule. The new policy heightens it further.

Biden’s executive action draws on authority granted to the president to control entries under the Immigration and Nationality Act. The American Civil Liberties Union said it plans to take the Biden administration to court, alleging the president used his authority illegitimately to make the asylum changes. Former President Donald Trump invoked this authority when he implemented a travel ban on immigrants from predominantly Muslim countries in 2017, which the Supreme Court upheld in 2018.

Gabriel Salguero is the president of the National Latino Evangelical Coalition and pastor of The Gathering Place church in Orlando, Fla. “I think [the policy] does have a deterrent effect,” he told WORLD. “But the reality is that the root causes of why people are leaving their countries in Asia and Latin America and parts of Europe still remain unaddressed.” As of June 2022, various conflicts or other dangers had forced at least 100 million people worldwide to flee their homes.

Under Biden’s order, immigrants can still request an appointment for an asylum interview at a port of entry using the CBP One mobile app. But the 1,450 seats available per day go fast, and some immigration experts worry that desperate migrants waiting months for a spot will take matters into their own hands. Instead of turning themselves in to Border Patrol between ports of entry, they might evade arrest and sneak into the country since they don’t have a shot at asylum under the new ban.

“In each other instance, where [Biden] has expanded restrictions, he’s also expanded the option for people to apply to enter legally. That is not the case here,” said David Bier, the director of immigration studies at the Cato Institute. “He’s not increasing the number of slots available to enter legally at all.”

Bier pointed to the increase in repeat encounters and gotaways under the pandemic-era Title 42 policy, when immigrants knew they would be immediately turned back if they surrendered themselves to authorities. This could turn into a similar situation, he said.

And not all the immigrants caught between ports of entry can be sent back across the border, Bier pointed out.

Biden has not announced any new agreement with Mexico which allows the United States to return people from countries besides Mexico across the U.S.-Mexico border. “What you’re really talking about is quite a marginal change in the number of deportations that are happening,” he said. The demographic most likely to be affected by the policy are Mexican asylum-seekers, since Border Patrol can deport them back to Mexico very quickly.

Illegal crossings from South America, Asia, and Africa are climbing. A government document obtained by the Washington Examiner indicated it will be difficult for the United States to remove many of the illegal immigrants from countries in Africa and Asia. Often, countries in Asia and Africa won’t accept deportation flights.

Despite apprehending thousands of Chinese immigrants in 2023 and 2024, the administration has only chartered one deportation flight to China this year. Homeland Security Secretary Alejandro Mayorkas told the House of Representatives it was the first one in a number of years since Beijing only recently resumed cooperation on deportation with the United States. The majority of the 1,583 flights during the past 12 months carried people back to Central American countries, according to Witness at the Border, an advocacy group that tracks ICE flights.

U.S. Immigration and Customs Enforcement must detain the immigrants who can’t be deported back to their home countries. But space is limited.

“​​Detention capacity is what it is,” Bier said. “It’s increased slightly this year, but not substantially.” That means authorities will likely continue to release thousands of non-Mexican immigrants into the country with notices to appear in immigration court. “There’s only so many planes. There’s only so many buses,” he added. “They’re already maxed out.”

While Bier argued that Biden’s attempt at easing the asylum overload will only make things worse, he acknowledged the system can’t keep functioning for long without a major change. He argued for providing more legal pathways rather than restricting entries. Biden created a program in January 2023 that allows 30,000 immigrants per month from Venezuela, Cuba, Haiti, and Nicaragua to live in the United States on a two-year parole status. The problem with this, Bier noted, is most of these immigrants end up applying for asylum as their parole end date draws near. He argued a program that enables immigrants to live and work in the country indefinitely on parole but doesn’t allow them to apply for asylum or provide a pathway to citizenship would encourage legal entries and help solve the asylum backlog.

Murray agreed that restricting entries isn’t the best path forward and will only exacerbate existing labor shortages in service industries and agriculture. “If we were to edit the asylum system, while including new visas … what we would see is people that are in desperate situations, that maybe don’t technically qualify for the asylum-seeker classifications would still be able to come and contribute and be a part of our country and our economy,” she said.

As the 2024 election looms, voters are consistently ranking immigration as a top issue. Murray pointed to a 2023 National Immigration Forum pollconducted in conjunction with the Bullfinch Group that showed 86 percent of Americans want a bipartisan, congressional solution to immigration chaos. “What I’m worried about is in this political conversation filled with pundits … is that they’re losing the nuances of where the American people really are,” she said.