President Joe Biden delivers remarks urging Congress to pass the Emergency National Security Supplemental Appropriations Act.Michael Reynolds/EFE/ZUMA
The Biden administration is reportedly considering using executive authority to impose harsh immigration measures, including a push to end asylum for migrants crossing between ports of entry at the US-Mexico border—a move that the Trump administration tried in 2018 and was shot down by the courts.
The measures, which NBC News first reported on Wednesday, would mimic some of the provisions included in the now-dead Senate bipartisan border deal, including raising the standards for the initial asylum screening known as a “credible fear” interview. Biden’s plans would also instruct US Immigration and Customs Enforcement (ICE) officers to prioritize the removal of new migrants in what officials familiar with the discussions described to NBC News as a “last in, first out” policy.
It’s unclear whether or how the White House would move forward with these changes. But the fact that they’re under consideration underscores the president’s shift towards stricter border enforcement at the expense of the asylum system, as I’ve written about before. In 2020, Biden pledged a humane immigration policy as a change from Trump. Now, he is promising to “shut down the border.”
The Biden administration has already imposed limitations on asylum, including by making it harder for migrants to qualify if they hadn’t first sought and been denied humanitarian relief in other countries on the way to the United States. Now, the White House is floating around the idea of using an authority under section 212(f) of the Immigration and Nationality Act that allows presidents to suspend the entry of certain foreigners into the country if they find that it “would be detrimental to the interests of the United States.”
Former President Donald Trump infamously weaponized this authority against travelers from Muslim-majority countries. He also invoked it in 2018 to crackdown on asylum for migrants crossing outside ports of entry, but a federal judge ultimately blocked the policy, writing that “whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” Current laws dictate that asylum seekers have the right to seek protection regardless of how they come into the country.
CNN reported that the Department of Justice’s Office of Legal Counsel is analyzing the proposal to see if it would survive the inevitable challenges in court. “The courts were emphatic that the Trump administration could not deny asylum based simply on how one entered the country,” Lee Gelernt, a lawyer with the American Civil Liberties Union (ACLU), told the New York Times. “Hopefully the Biden administration is not considering recycling this patently unlawful and unworkable policy.”
In response to reports highlighting the White House latest deliberations, House Speaker Mike Johnson, who promptly shot down the Senate bipartisan border deal that would have catered to GOP priorities, said Biden has “misled the public when he claimed he had done everything in his power to secure the border.”
