Biden’s sweeping new asylum restrictions, explained

President Joe Biden issued a new proclamation on Tuesday that bars asylum seekers who cross the border without permission from applying for protections in the US when migrant crossings exceed a daily average of 2,500 in a week.

It is arguably the most restrictive measure Biden has taken yet on the US-Mexico border. It comes as Republicans continue to use his struggle to stem migration against him in the presidential election and as Americans have grown averse to immigration.

If allowed to take effect, the proclamation would reshape the asylum system, no longer guaranteeing migrants who have credible fear of harm or persecution in their home countries the right to seek safe haven in the US no matter how they cross the border.

“We must face the simple truth,” Biden said in remarks at the White House on Tuesday. “To protect America as a land that welcomes immigrants, you must first secure the border and secure it now.”

Former President Donald Trump tried similar measures to undermine asylum, invoking the same legal authorities that Biden is now citing. Those authorities give the president broad powers over immigration. But they are not limitless, and some of Trump’s policies, including an early iteration of his travel ban against citizens of Muslim-majority countries, were struck down in the courts on that basis.

Courts haven’t fully articulated the limits on the president’s powers to restrict immigration. This new executive action from Biden will likely pose a major test in that respect.

Whether the executive action survives legal challenges, however, is beside the point for Biden. It doesn’t take a scalpel to US asylum law, but a sledgehammer, and that suggests the political optics of the policy are more important to Biden than if it actually does anything.

The proclamation will take effect June 5. When border crossings exceed the threshold outlined by Biden, asylum seekers who cross the border without permission will continue to be barred from applying for asylum until after migrant encounters drop below a seven-day average of 1,500.

That doesn’t necessarily preclude them from staying in the US if they haven’t been detected by immigration enforcement — it just deprives them of the opportunity to apply for legal status that they might otherwise qualify for, said Kennji Kizuka, the International Rescue Committee’s asylum policy director.

Not all will be barred from applying for asylum when the proclamation is triggered. Unaccompanied children and victims of trafficking are exempt, as well as individuals who present “exceptionally compelling circumstances,” which may include experiencing a medical emergency or an imminent threat to their life or safety.

Migrants who sign up for an appointment at a port of entry to enter the US will still be permitted to cross, though it’s unclear how many appointments might be made available at times of peak demand. Between January and February 2024, nearly 450,000 people were allowed to cross the border by scheduling appointments on a government-sponsored phone app called CBP One.

The question is whether this will survive legal scrutiny.

“We intend to sue. A ban on asylum is illegal just as it was when Trump unsuccessfully tried it,” said Lee Gelernt, head of the ACLU’s immigrant rights project.

Biden cites federal law that gives the president the authority to suspend or restrict the entry of any immigrants that they deem “detrimental to the interests of the United States.” The US Supreme Court, in the case Trump v. Hawaii over the Trump-era travel ban, has previously said that this language “exudes deference” to the president.

Biden also cites the federal prohibition on any immigrant entering the US “except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

However, that doesn’t mean that the president can go against existing federal law. US asylum law allows any immigrant to apply for asylum if they are physically present in the US, regardless of how they got there.

This will likely be a point of contention in the ACLU’s lawsuit over the proclamation and has also been at issue in lawsuits over other Biden and Trump policies restricting asylum eligibility that have yet to be resolved.

“Immigrant advocates will say the asylum provision explicitly allows people to apply for asylum even if they enter between ports of entry, and therefore to suspend entry because too many people are entering between ports of entry violates an express provision of the immigration law,” said Stephen Yale-Loehr, a professor at Cornell Law School. “Courts will have to decide how much deference to give President Biden and whether his lawyers have crafted the executive order carefully enough.”

If the proclamation does survive legal challenges, the potential humanitarian consequences are concerning. Migrants apprehended by immigration enforcement and found ineligible for asylum under the proclamation may be sent back to Mexico or their home countries with potentially disastrous consequences.

“People seeking refuge in the United States will be at greater risk of being returned to the danger they fled without a chance to explain their fear or make their case before an immigration judge,” Kizuka said.

This is what it has come to for Biden.

Biden came into office promising to undo the cruelties of his predecessor. His party’s 2020 platform didn’t even mention border security and instead focused on expanding legal immigration pathways, rolling back the US’s immigration detention regime, ending the root causes of migration, and other immigrant-friendly provisions. Four years after former President Barack Obama was dubbed the “deporter in chief,” it seemed as though Trump had pushed Democrats to embrace a newfound moral case for increasing immigration.

But amid political pressure, Biden has advanced immigration policies that his Republican predecessor devised himself or would have at least been proud of.

In addition to Tuesday’s proclamation, Biden kept Trump’s Title 42 policy in place for more than two years, allowing him to turn away swaths of immigrants at the border under the guise of protecting public health during the Covid-19 pandemic.

He also instituted his version of Trump’s asylum transit ban. That rule allows immigration enforcement officials to turn away migrants for a number of reasons: if they do not have valid travel and identification documents, if they’ve traveled through another country without applying for asylum, if they don’t show up at a port of entry at an appointed time, and more.

And in February, Biden endorsed a bipartisan bill that included border security measures that Democrats, who staked out a fairly unified position in support of immigrant rights during the Trump era, wouldn’t have dreamed of supporting a few years ago. Republicans would have happily voted for it if Trump hadn’t intervened: He explicitly wanted to keep the border a live issue in the presidential election.

That allowed Biden to frame the proclamation as a last resort.

“Frankly, I would prefer to address this issue through bipartisan legislation, because that's the only way to actually get the kind of system we have now that's broken fixed,” he said Tuesday. “But Republicans have left me no choice.”

All of this has put Biden at odds with his party’s progressive wing at a time when fractures in the Democratic coalition are already deepening over the war in Gaza. It’s also a reflection of where Americans are on the issue of immigration.

Voters have consistently ranked immigration among the most important issues facing the country, and the share of Americans who want to see immigration levels decrease is at a decade-high. Republicans like Texas Gov. Greg Abbott, who has been busing migrants to blue cities, have succeeded in weaponizing the issue against Democrats: Biden’s performance on the border has consistently dragged down his approval ratings.

Centrist Democrats, including Biden, have consequently become hawkish on the border, at the advice of Sen. Chris Murphy (D-CT) in a widely circulated February memo — and at the expense of Americans better understanding what’s happening at the border and why.

“This is a political statement so that [Biden] can say I'm tough on the border and try to deflect all the criticism that Republicans are throwing at him,” Yale-Loehr said. “Biden can at least say, ‘I tried.’”