Biden issues new executive action: Much of southern border to close at midnight

President Joe Biden issued long-expected executive actions on Tuesday to clamp down on migrants seeking asylum, and in doing so set the stage for the U.S. border with Mexico to be shut down between ports of entry at midnight.

The action and accompanying rule from the Biden administration allows the president to close the border in between ports of entry when there is an average of 2,500 crossings a day over a seven day period. That threshold, administration officials said, has already been hit over the past week.

The announcement represents an aggressive attempt by Biden to bolster his standing on the border in advance of the November election. Biden is expected to use a speech on Tuesday to highlight his unilateral efforts to resolve the crisis, while congressional Republicans — at the behest of Donald Trump — killed efforts to pass bipartisan border legislation earlier this year.

The president will be joined later on Tuesday by members of Congress and local and state leaders from border cities and states, in an effort to project consensus and political strength on a topic that has long dogged him politically. It’s expected to spur blowback from progressives and immigration advocates, who plan to speak out against the move Tuesday afternoon.

“The goal here is to secure our border while preserving legal immigration consistent with our values as a nation,” said a senior administration official, previewing the announcement for reporters. “There are several differences between the actions that we are taking today and Trump-era policies. The Trump administration attacked almost every facet of the immigration system and did so in a shameful and inhumane way. … The actions that we are taking today will only apply during times of high encounters.”

The new rule from the Departments of Homeland Security and Justice will restrict asylum during periods of high volumes of border crossings, allowing the Biden administration to remove some migrants immediately from the U.S. in a matter of hours or days. These migrants would face a five-year ban on reentering the country, as well as potential criminal prosecution.

When crossings exceed a daily average of 2,500 over the course of a week, the president will have the authority to shut down the border in between ports of entry. Once the shutdown is in effect, DHS secretary Alejandro Mayorkas can reopen the border once average crossings have fallen below 1,500 for seven consecutive days. That determination allows the border to reopen 14 days later.

There will still be a number of exceptions, including for unaccompanied children, some victims of trafficking, migrants facing acute medical emergencies or imminent threats to their safety. Migrants who also have an appointment at a port of entry via Custom and Border Protection’s smartphone app will still be processed. The Biden administration is currently processing roughly 1,500 migrants a day at official ports, and the president’s actions will not affect his humanitarian parole pathways established for certain migrants.

The new actions aim to restrict asylum by making a number of changes to the president’s Title 8 authority, long-established procedures that allow the government to remove from the country people who are unable to establish a legal basis. People who cross the border unlawfully will be deemed ineligible for asylum absent of compelling circumstances, and they will only be referred to an asylum officer under specific circumstances. And migrants who are screened by an asylum officer will also face higher standards than what was previously used to determine fear or the intention to seek asylum.

Senior administration officials on Tuesday framed the action as a last resort after Congress failed to pass the bipartisan border deal earlier this year. They continued to warn that the president is constrained by funding and resources approved by lawmakers.

“We have repeatedly asked Congress for emergency supplemental funding to allow us to enhance and increase our ability to deliver consequences at the border. And unfortunately, Congress has failed to act on those requests,” a second senior administration official said.

The actions Biden announced on Tuesday are expected to face legal challenges, just as the Trump administration did when relying on the same presidential authority to make sweeping changes to the immigration system. The president’s officials said they included “important humanitarian and legal changes” in their implementation of the authority. But they also said they’re prepared to defend the policy changes in court.

The American Civil Liberties Union on Tuesday swiftly announced that it would challenge the Biden administration’s policies in court, noting that the actions “take the same approach as the Trump administration’s asylum ban.” The president’s officials argued that they included “important humanitarian and legal changes” in their implementation of the authority that the previous administration did not. But they also said they’re prepared to defend the policy changes in court.