President Joe Biden is expected to take executive actions Tuesday on immigration, a source familiar with the plan has confirmed to Scripps News.
The actions, long anticipated and teased by the White House, would allow the president to bar asylum-seekers from entering the country both between and at ports of entry once a threshold has been met during times of high encounters.
A source familiar with the administration’s plan told Scripps News that their understanding is the threshold is being set at 2,500 encounters between ports of entry. That's in addition to the 1,500 limit currently set for ports of entry.
The action is not expected to impact those lawfully presenting at ports of entry, such as individuals who have a scheduled asylum appointment using the CBP One app.
The administration would be leaning on the Immigration and Nationality Act’s section 212(f) to enable the border "shutdown," the same mechanism utilized by former President Donald Trump to try to limit cross-border migration and enact so-called "travel bans" on majority-Muslim countries.
Officials from border towns have been invited to attend Tuesday's event where President Biden will announce the measures. The mayors of Brownsville and Edinburg in Texas, and San Diego, California, are among those invited, local officials confirmed to Scripps News.
However, the event has also faced criticism from some local officials, who argue more action is needed to curb illegal immigration.
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“This is nothing but a sham and an insult to those of us dealing with the real consequences of his failed border policies. San Diego is the epicenter of illegal immigration. Yesterday alone, we faced over 1,300 encounters,” El Cajon, California, Mayor Bill Wells posted on X.
As recently as last week, the White House said it was looking at "all available options" to address the situation at the border.
“The President is going to do everything that he can to deal with what [we’ve] been seeing: a broken immigration system,” White House Press Secretary Karine Jean-Pierre told reporters traveling on Air Force One on May 29. "We’re always going to look at all of our options.”
In recent weeks, the Biden administration has made incremental border rule changes, including moving public safety evaluations for migrants seeking asylum to earlier in the approval process, and expanding eligibility for health coverage through the Affordable Care Act for DACA recipients. The administration was previously considering raising the standard for asylum claims and expanding lawful entry through parole programs.
The anticipated policy announcement follows a failed renewed effort in Congress to pass a bipartisan negotiated border deal. A Senate vote failed late last month on the measure after it repeatedly faced Republican opposition. The bill would have increased funding for resources and given President Biden authority to shut down the border after encounters met a certain threshold, something the president touted as the “toughest” reforms in years. President Biden spoke with leaders of both chambers ahead of the vote to urge its passage, though such efforts failed to sway the opposition.
“While Congressional Republicans are choosing to stand in the way of border enforcement, I will not stop fighting to deliver the resources that border and immigration personnel need. If you believe, as I do, that we need reform now, doing nothing is not an option,” President Biden said in a statement following the failed vote. “We must make our border more secure and we must make sure the United States remains a beacon of hope and opportunity. Today and every day, I remain committed to taking action to address our broken immigration system.”
President Biden has faced pressure from both Republicans and Democrats to take action on the border. More than a dozen House Democrats sent a letter to President Biden last month urging executive action on the border. Meanwhile, Republicans continue to call for more stringent measures.
Tension over the border reached an apex late last year as the number of encounters with migrants surpassed a record-breaking 300,000 in December, CBP data showed, though monthly encounters have since fallen substantially. Still, critics have warned the number could creep back up again absent new actions.
Last week, a White House official maintained there hadn’t been final decisions made on what additional executive actions, if any, could be taken.
In a statement to Scripps News, the White House defended President Biden’s stance on the border, suggesting congressional Republicans had failed to act by blocking the president’s legislative proposals.
“While Congressional Republicans chose to stand in the way of additional border enforcement, President Biden will not stop fighting to deliver the resources that border and immigration personnel need to secure our border,” a White House spokesperson stated. “As we have said before, the Administration continues to explore a series of policy options and we remain committed to taking action to address our broken immigration system.”
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Meanwhile, President Biden’s planned actions are anticipated to be met with a flurry of legal challenges from immigration advocates, and their ability to withstand legal scrutiny remains unclear. However, a source familiar with the administration's plan said they are confident they have the legal authority to execute the plan.
In 2018, a similar policy implemented by then-President Trump restricting asylum opportunities drew an immediate lawsuit from a coalition of migrant support groups, who argued the actions violated Congress’ “clear command that manner of entry cannot constitute a categorical asylum bar.”
Years later, while litigation over the Trump policy was ongoing, President Biden replaced it with a similar version, which itself drew court challenges. In July 2023, a federal judge ruled against the government, finding that the policy “is both substantively and procedurally invalid." President Biden opted to appeal the case and defend the restrictions, angering immigration advocates and progressive Democrats in Congress.
Already, some immigration advocates have expressed anger with President Biden as rumors of the executive actions spread.
“Adding new operational requirements to border processing when the numbers are low will generate confusion that benefits smugglers and drives up crossings,” said Andrea Flores, vice president for immigration policy & campaigns with the advocacy group FWD. “If the administration wants to show progress on border security, they should be helping the public understand why border numbers have dropped, not send the message that the border isn’t secure and needs yet another ineffective asylum restriction.”
“AILA has not seen rule itself, but from what we’ve heard, the new rule will make it more difficult for people to qualify for asylum than existing CLP rules, which are already resulting in many more people being denied asylum after a very preliminary screening, and we're concerned people will be unfairly denied asylum under this new policy,” Greg Chen, senior director of government relations for the American Immigration Lawyers Association told Scripps News.
The border has become a key issue in the 2024 election, particularly for Republicans. In a recent Economist/YouGov poll, a majority of respondents considered immigration to be an important issue, while more Republicans than Democrats considered it their most important concern. Trump has frequently attacked President Biden over border policy, promising mass deportations if he is elected. In an interview with Time, Trump said he’d use local law enforcement and the National Guard. This week, Trump is expected to visit Arizona for a town hall hosted by Turning Point Action.
