Biden's executive order on asylum

Was President Biden’s executive order on asylum an effective policy decision? Viewpoints from multiple sides.

Jun 07, 2024

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What’s happening

On Tuesday, President Biden signed an executive order that temporarily shuts down asylum requests at the southern border when daily encounters with migrants crossing between legal ports of entry exceed 2,500. The order took effect immediately on Wednesday with daily encounters recently averaging near 4,000.

Details: Biden’s order uses authority under Section 212(f) and Section 215(a) of the Immigration and Nationality Act (INA), which enables the president to suspend entry of migrants that would be “detrimental to the interests of the United States.”

When the order is in effect, border enforcement personnel will have the power to expel migrants crossing the border illegally without considering them for asylum. There are certain exceptions including unaccompanied minors, victims of trafficking, and those facing an imminent safety threat. Those ineligible will be returned to Mexico or their home country and face a 5-year reentry ban. The authority remains in effect until daily average encounters fall below 1,500.

How we got here: Biden’s executive action comes after a more sweeping border security bill was twice rejected in the Senate in February and May. That bill would have legislated similar border rules while augmenting border patrol resources and funding for enforcement. (See our coverage of viewpoints on the Senate border bill.)

Observers highlight Biden has seen mounting political pressure to address border security concerns. Encounters with migrants crossing the border illegally reached an all-time high in 2023. A recent Gallup poll found more Americans (27%) cite immigration as their top election issue than any other issue.

Implications: The executive order is similar to an attempt by former President Trump in 2018 to bar asylum seeking through invocation of the same INA authority. Trump’s order was ultimately struck down in court on grounds it violated conflicting asylum law. Biden’s order is expected to face similar legal challenges.

Viewpoints on Biden’s action vary widely. Many are critical but diverge on whether it goes too far or not far enough. Others support it as a necessary compromise. This week, we lay out viewpoints from all sides. Their divergence illustrates the complexity of the border and immigration issue. Let us know what you think.

Notable viewpoints

More supportive of the order:

The executive order is a step in the right direction.

The asylum process is broken and tends to be abused by migrants; Biden’s action is an effective step toward reducing that abuse in the short-term.
With Democratic leaders in sanctuary cities on the East Coast and in the Midwest raising concerns about the migrant crisis, Biden needed to do something that could address it.
Biden is making the best of a bad situation by doing something about the border in a time where voters want to see action on immigration, even if not all sides will give him credit politically.

Biden had little choice given congressional inaction on immigration.

With the number of people crossing the border doubling from 2018 to 2023 and Congress failing to pass a border bill that would have helped improve the asylum process, urgent action was needed by the administration to alleviate pressure on the system.
Biden’s order is a necessary compromise as more holistic immigration reform efforts have failed in Congress from partisan gridlock.
Truly securing the border requires congressional legislation to provide funding for much needed resource augmentation including 1,500 border security agents, 100 immigration judges, and 4,300 asylum officers. (Summarized from Biden announcement of executive order.)

The executive order will improve the border situation and discourage illegal crossings.

The 2,500 encounters per day threshold will help alleviate the burden on Border Patrol agents and make it easier for immigration officers to remove individuals without a legal basis for being in the country. (Summarized from White House official statements to the press.)
Removing migrants quickly will change the calculus of would-be illegal migrants – who will be less likely to pay thousands of dollars for the help of smugglers – and decrease the number of migrants illegally attempting to cross the border. (Summarized from White House official statements to the press.)

Biden is making an effort to retain legal immigration pathways.

“It is not fair, however, to say that Biden is just like Trump now on immigration. Biden has rightly done a lot to expand legal pathways for asylum seekers and other migrants. The asylum claims of people who manage to make an appointment through an online app — roughly 1,500 per day — will continue to be processed.” (Farah Stockman, New York Times editorial board member.)

More opposed to the order:

Biden’s order goes too far and will likely make things worse for migrants.

With the new restrictions on asylum, migrants are more likely to be stuck near the border in northern Mexico, where dangerous conditions include threats of sexual violence, kidnapping and murder.
“The ACLU and partners successfully challenged an asylum ban by the Trump administration that took the same approach as the Biden administration. It would also rush vulnerable people through already fast-tracked deportation proceedings, sending people in need of protection to their deaths.” (American Civil Liberties Union (ACLU) press release.)
Restricting asylum even further will more likely push migrants to cross at more dangerous parts of the border than it will deter them from trying altogether.

Denying asylum consideration is antithetical to American ideals of inclusion.

The executive order disregards America’s standing as a sanctuary for the world’s persecuted and will shut out migrants in desperate need of respite.

The order doesn’t go far enough to limit asylum seekers and curb immigration numbers.

Biden’s executive order still permits 1,500 migrants per day seeking asylum at legal border crossings using the CBP One app and retains parole policies that enable migrants from countries such as Nicaragua and Venezuela to fly into the US; their combined effect will add to the millions of migrants already living in legal limbo in the US.
Even with the 2,500 encounters per day threshold, Biden’s executive order is projected to permit 1.8M total migrants per year in tandem with other retained policies, lower than the past 2 years but higher than nearly any point in history.
The order’s exception for unaccompanied minors will almost certainly compel more unaccompanied minors to seek asylum.
The executive order doesn’t do enough to curb asylum seekers specifically coming from countries such as Ukraine, Russia, and Afghanistan, who fly to South America before illegally crossing the US-Mexico border.

Biden’s order is more of a political maneuver than practical border policy.

Biden is going against his own statements made in 2019 on protecting asylum in an attempt to placate conservatives and moderate Democrats at a time when the border situation has actually improved; as of last month, daily illegal border crossing encounters had already fallen 54% below their highs in Dec 2023.
That Biden is issuing this executive order now indicates he could have taken action all along, despite claiming his hands were tied without congressional support earlier in the year.

Other viewpoints:

Biden’s order is likely to face legal challenges.

Biden’s order, which invokes Section 212(f) of the Immigration and Nationality Act (INA), conflicts with existing asylum law under Section 208 of the INA that permits anyone physically in the US to apply for asylum; Trump’s efforts in 2018 similarly invoking Section 212(f) to limit asylum were turned down by courts.
Biden’s own Department of Justice has historically shown little support for Section 212(f) authority when hearing challenges from immigration advocates on other immigration issues.

Enforcing the order will face practical roadblocks.

Effectively detaining migrants seeking asylum and deporting them will require additional resources the system currently does not have and increased cooperation from Mexico, making the feasibility of the order’s enforcement uncertain.
Without any new funding to support enforcement, the executive order will lose its deterrent impact as migrants inevitably hear of the administration’s inability to quickly expel those ineligible for asylum.

The current border situation is Biden’s own doing.

Biden’s administration has approved almost 80% of asylum claims over the past three years, a figure that is roughly double that of the former Trump administration; many migrants granted temporary asylum don't show up for their hearings.
The border crisis – characterized by the administration’s regular release of asylum seekers into the country while they await a hearing under the guise of “prosecutorial discretion” – is Biden’s own doing, driven by his unrealistic excuse of “equity for all.”

The government should enact more holistic immigration policies rather than a narrow focus on the border.

Biden should do more to protect undocumented immigrants such as policies that shield undocumented spouses of US citizens from deportation and broadening Temporary Protected Status, which gives temporary legal status to migrants fleeing natural disasters and conflict.
“This nation, with an aging population, increasing life expectancy, declining birthrate and entitlements transferring trillions of dollars from employees to retirees, needs lots of legal immigrants to replenish its workforce. That the government cannot provide for this is a failure second only to the nation’s fiscal shambles.” (George F. Will, Washington Post opinion columnist.)

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