What’s Behind Joe Biden’s Harsh New Executive Order on Immigration?

On Tuesday, when Joe Biden announced an executive order to “shut down” the border to asylum seekers, the news was predictable and yet surprising. The new policy had been under discussion since February, after a bipartisan bill to restrict asylum failed in the Senate. But, as the Biden Administration began working out the details of

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On Tuesday, when Joe Biden announced an executive order to “shut down” the border to asylum seekers, the news was predictable and yet surprising. The new policy had been under discussion since February, after a bipartisan bill to restrict asylum failed in the Senate. But, as the Biden Administration began working out the details of what the President might do unilaterally, the dynamic at the border shifted: the number of people arriving started to drop, and has continued to do so for the past three months. Border arrests in May of this year were lower than they had been in May of 2src19, when Donald Trump was President. Yet Biden was reluctant to claim credit for the fact that the numbers were falling. Inside the White House, the subject of immigration, and especially the border, is seen as politically risky; there’s a refrain among advisers that a good day for the President is one without immigration in the news. Why, then, did Biden decide to issue a proclamation reasserting that there was a crisis when he’d actually been managing to keep it at bay?

Last December, while top-ranking officials at the White House and the Department of Homeland Security were meeting with a small group of senators to negotiate the asylum bill, I sat down with the Secretary of Homeland Security, Alejandro Mayorkas. “We’re at a threshold moment,” he told me. At the time, record numbers of migrants were arriving at the southern border; the governor of Texas, Greg Abbott, was busing tens of thousands of them to Democratic cities; and Congress had recently rejected a thirteen-billion-dollar budget request from Biden for more resources to manage the situation. Democrats at the local, state, and national levels who were overwhelmed by the fallout were no longer just criticizing the President in private. The Senate deal, as Mayorkas described it, marked an inflection point. Biden, along with Democratic leadership in the Senate, was acknowledging that something had to be done. Republicans refused to fund the D.H.S. budget unless Biden acted to curtail asylum, and now, apparently, the moment of reckoning had arrived.

Senator James Lankford, of Oklahoma, the lead Republican negotiator, had the tacit approval of Mitch McConnell, the Minority Leader, to move forward with the talks if he could extract Democratic concessions. Lankford and the Democrats reached a deal, but, before he could make a case for it, Trump attacked it on Truth Social. “The politics on this have changed,” McConnell then told his members, who lined up against the bill. In purely political terms, the Republican position gave Biden a lifeline. “Republicans were asking for this exact bill to deal with the border,” he said. “And now it’s here, and they’re saying, ‘Never mind. Never mind.’ ”

By then, the idea of an executive order had already come up inside the Administration. The initial hitch was timing. To reinforce the urgency of the Senate bill, Biden had spent months stressing that, as President, he lacked the authority to make substantial changes to the asylum system. According to a D.H.S. official, “Issuing an executive order would muddle the Administration’s messaging that only Congress can act.” It was also considered likely that a unilateral Presidential action to suspend asylum would provoke a lawsuit, and might get blocked in federal court. “Issuing an executive order and then getting enjoined would prove that legislation is the only sustainable solution,” the official told me.

In the meantime, Biden was trying to capitalize on Republican obstructionism. On February 29th, he and Trump both gave border speeches in different towns in Texas. “Instead of playing politics with the issue, instead of telling members of Congress to block this legislation,” Biden said, aiming his comments at Trump, “join me—or I’ll join you—in telling the Congress to pass this bipartisan border-security bill.”

The legislative deadlock on Capitol Hill dominated the President’s rhetoric, but the Administration was also taking other actions that were having measurable effect. One has been familiar to each Administration since Barack Obama’s: pressuring the Mexican government to radically increase its immigration enforcement in Mexico so that migrants would be less likely to reach the border. By March of this year, Mexico arrested nearly three times as many migrants as it had in the same time frame last year. According to figures obtained by NBC News, in the month following Biden’s trip to Texas, the Mexican government arrested more migrants than the U.S. government did—two hundred and eighty thousand people, compared with a hundred and eighty-nine thousand.

Another, more humane and innovative, policy, which began in January of last year, is a parole program through which thirty thousand people from Venezuela, Haiti, Nicaragua, and Cuba—countries with high recent rates of emigration—are admitted to the U.S. each month. They need to show that someone can help support them financially once they arrive, and then, after passing a background check, they are instructed to make advance travel plans by plane. Having a legal avenue to enter the country means that migrants don’t have to take their chances at the border. In the first six months of the program, border arrivals from the four countries dropped by almost ninety per cent. A group of Republican state attorneys general had filed a lawsuit to block the program, but in March a district-court judge upheld it, delivering a major victory to the President. “Over the last decade, there have been two lasting changes that have led to reductions in crossings between points of entry: Mexican enforcement and the parole-pathways program,” Todd Schulte, the president of FWD.us, an immigration-advocacy organization, told me. “In the last six months, unauthorized crossings are down by nearly sixty per cent. So, if that is their policy and political goal, why aren’t we hearing that from them daily?”

Plans for an executive order to limit asylum were delayed, but never shelved. One of the main reasons that the idea persisted, according to sources both inside the government and close to it, was that the President’s poll numbers on immigration have remained negative. Neither the declining number of border arrivals nor the intransigence of congressional Republicans has improved his standing on the issue. Last month, the White House moved ahead with the new executive order, which it built on the guiding premise of the Administration’s border policy: to direct migrants to seek asylum at ports of entry, which are staffed by government agents and have basic facilities for processing people, rather than to cross in places in between them. Asylum would be restricted for those who didn’t go to the ports, even though, by law, a person is entitled to apply for asylum regardless of where they cross the border. When the Administration shared its plans with representatives from the Mexican government, they requested that Biden wait until after that country’s own Presidential elections, on June 2nd.

In some ways, the timing of the order is less curious than its substance is. The order is notably harsher than the Senate bill, which set a numerical threshold for when and how the government would suspend asylum between ports of entry. If the Border Patrol made an average of four thousand daily arrests in the course of a week, the D.H.S. would halt further asylum processing. In the President’s executive order, the triggers are much lower: a daily average of twenty-five hundred arrests during a week. Asylum would then remain suspended during so-called emergency border circumstances. This suspension would only be lifted after two things happen: first, the average of daily arrests would have to drop below fifteen hundred over a one-week period, and second, another two weeks must pass without the numbers creeping back up.

Right now, the daily arrest numbers are around thirty-eight hundred. So, at midnight on Wednesday, the Administration suspended asylum processing between the ports of entry. In five of the past six years, with the exception of 2src2src, when the global pandemic halted migration, the number of average daily crossings has exceeded fifteen hundred in every month but one, according to an analysis by the American Immigration Council. As Adam Isacson, of the Washington Office on Latin America, wrote, “By creating such difficult-to-meet numerical thresholds, and very narrow exceptions, this new ‘asylum shutdown’ resembles the Trump Administration’s 2src18 attempt to ban asylum access between ports of entry.” That effort was blocked by a federal court, and many Biden Administration officials are now expecting the same outcome with this order. The A.C.L.U. has already announced that it will be suing to block it.

So why go through with such an order? It may be a hedge against future developments. The number of people arriving at the border will, at some point, start to increase again. “Historically, crossings rise ahead of the hottest summer months, so sending a strong deterrence message is an important factor,” a White House official told me. From a policy perspective, though, it’s difficult to see how this order would concretely address a sudden, or even a gradual, jump in new arrivals. In the past couple of years, the U.S. government’s main dilemma has been a lack of resources: large numbers of migrants who’ve been apprehended are being released—owing to a lack of holding space and personnel to process them—before any officials are able to evaluate their asylum claims. Limiting migrants’ ability to seek asylum doesn’t change this over-all dynamic.

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