Biden order to block most illegal immigrants when crossings surge, as election nears

The White House on Tuesday announced long-awaited executive actions to stop illegal immigrants at the southern border claiming asylum if crossings reach a certain level — a move coming just months before the November election and that could soon see a legal challenge from activists.

President Biden is issuing a presidential proclamation that will temporarily suspend the entry of non-citizens across the southern border once the number of average border encounters exceeds 2,500 a day over seven days, officials said. That will stay in effect until 14 days after there has been a seven-day average of less than 1,500 encounters along the border. Officials said it would make it easier for immigration officers to quickly remove individuals who do not have a legal basis to remain in the U.S.

In the last 24 hours at the border, sources tell Fox there were 5,200 encounters, and it has averaged over 5,000 every day for the past week. There were 179,725 encounters at the southern border in April, compared to 211,992 in April 2023, and 189,357 in March. While those numbers are lower than highs seen in 2022 and 2023, they still remain high compared to pre-2021 numbers.

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In doing so, Biden is drawing upon authorities under 212(f) and 215(a)of the Immigration and Nationality Act (INA) which allows presidents to suspend entry of certain categories of foreign nationals. The Trump administration used 212 (f) on a number of occasions, including for the travel ban from certain countries, but it was blocked by a legal challenge from applying it to the southern border.

The order from President Biden includes a number of exceptions for those coming across the border. It will not apply to visa holders, unaccompanied children, victims of a “severe form” of trafficking, as well as those who face an acute medical emergency or an imminent threat to life or safety. It also does not apply to those seeking entry to the U.S. via ports of entry using the CBP One app — of which around 1,500 migrants are allowed in each day.

It is expected to take place immediately, and will be accompanied by a joint rule restricting asylum eligibility during high border encounters that will be issued by the Departments of Justice and Homeland Security.

It marks a significant move toward the right from the Biden administration. In 2021 the administration rolled back a series of Trump-era border protections, which critics say encouraged the historic migrant numbers that followed. There have been over 7 million migrant crossings during Biden’s time in office.

The administration says it is dealing with a hemisphere-wide challenge that needs congressional action to provide funding and fix what it says is a “broken immigration system.” The White House has said that this action comes now after Republicans have rejected other attempts at congressional actions, including a bipartisan Senate bill that would have implemented a similar limiting mechanism as well as providing additional funding.

“The presidential proclamation, together with the interim final rule, is another important step in our more than three years of ongoing efforts to strengthen our ability to impose consequences on those who cross our southern border,” a senior administration official told reporters on Tuesday ahead of the announcement.

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“But we are clear eyed that today’s executive actions are no substitute for Congress taking up and passing the tough but fair bipartisan Senate bill, which would have significantly strengthened the consequences in place at the border and, equally important, have provided billions of dollars to support the men and women who are working on the front lines to secure our border,” they said.

While Republicans have previously urged the administration to use 212(f) to stop illegal crossings, ahead of the announcement lawmakers were unimpressed and called it a move that was too little, too late.

“By my count, he’s issued 94 executive orders since he’s been president for the United States. But he’s waited until today to actually do what he calls effective action on the border,” Sen. John Cornyn, R-Texas, said at a press conference. “And my question to him is, why did you wait until now if you were serious about doing it? The simple answer is he’s not serious about securing the border.

Other lawmakers claimed it was a cynical move just months out from an election in which Biden is struggling due to his handling of border security. A recent Fox News poll found that seven in 10 voters go so far as to say the White House has “mostly failed” at improving border security. 

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“It’s a little late, you can’t make this cat walk backwards,” said Sen. John Kennedy, R-La., who described Biden as “polling right up there with fungal infections.”

The move comes with Biden facing intense political pressure on the crisis from both the left and the right.

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Mayors of cities like New York City, Denver and Chicago have demanded more funding from the federal government and have called for additional action, including expedited work permits. Recently, 15 House Democrats wrote to Biden calling on him to take additional action at the southern border.

“It has become clear that the current situation remains untenable, but with Republicans playing politics on border security, it is time for your administration to act. We urge you to use all tools at your disposal, including executive action, to better address security at the Southern border, interdict illicit fentanyl and allow for orderly legal immigration,” the letter said.

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