New Biden order seeks to crack down on migration at the southern border. What does it mean, and how will it affect asylum seekers?

President Biden signed an executive order Tuesday that will allow U.S. immigration officials to temporarily shut down the U.S. border with Mexico to asylum seekers if the number of migrants attempting to cross in a single day reaches a certain threshold.

Surrounded by mayors of U.S. border towns at the White House, Biden announced the move, which he hopes will curb the record-level of illegal crossings as criticism of his handling of the U.S. border looms large over his reelection campaign.

“Migrants will be restricted from receiving asylum at our southern border unless they seek it after entering through an established lawful process,” Biden explained during the signing.

“This will actually help us gain control of our border, restore order to the process,” he continued.

Here’s what the executive order means for potential asylum seekers.

On Tuesday, Biden used sections 212(f) and 215(a) of the Immigration and Nationality Act to shut down the border when illegal crossings between ports of entry swell to a certain number over a consecutive period of days. Though the White House did not provide specific numbers in its fact sheet announcing the order, the Associated Press, citing sources familiar with the plan, reported that the threshold for shutting down the border would be 2,500 migrants per day over the course of seven days.

While the border is shut down, asylum seekers apprehended after crossing into the U.S. will be immediately deported to either Mexico or their country of origin. U.S. immigration officials will not process their asylum claims.

A fact sheet released by the White House emphasized that the actions are not permanent. Once the number of migrants attempting to cross between ports of entry drops back down to a number that is “low enough for America’s system to safely and effectively manage border operations,” the border will reopen. According to the Associated Press, the threshold for reopening the border will be less than 1,500 migrants per day for an additional seven consecutive days.

President Biden speaks with members of the U.S. Border Patrol as they walk along the US-Mexico border fence in El Paso, Texas, on January 8, 2023. (Jim Watson/AFP via Getty Images)
President Biden speaks with members of the U.S. Border Patrol as they walk along the US-Mexico border fence in El Paso, Texas, on January 8, 2023. (Jim Watson/AFP via Getty Images)

Since Biden took office, U.S. Customs and Border Protection has encountered over six million migrants at the southern border. The Biden administration recorded more than two million crossings, a record high, at the Southwest border in the last fiscal year, which ended in September.

The new border restrictions represent an effort by the Democratic president to manage the border crisis after the failure of a bipartisan bill in Congress that would have included a threshold for border crossings, similar to the executive order, as well as improvements to the asylum screening process, among other changes to the system for migrants seeking refuge at the border.

Biden used section 212(f) of the Immigration and Nationality Act to authorize Tuesday’s executive order, the same presidential authority the Trump administration invoked in 2018 to enforce immigration rules. The section allows for border authorities to “suspend the entry” of migrants when immigration officials determine that their “arrival” is “detrimental to the interests of the United States.”

Biden's executive order is likely to be challenged in court.

The new rule will go into effect later on Tuesday, with Politico and ABC News reporting that parts of the southern border — between ports of entry — will be shut down to asylum seekers starting at midnight.

Migrants who already have appointments at an official CBP port of entry will still be processed. But those who are apprehended between ports of entry during a period of shutdown will be swiftly removed from the country, and face a five-year ban on re-entering, as well as possible criminal prosecution.

There are some exceptions to the rule, including unaccompanied children and victims of trafficking.

The American Immigration Lawyers Association (AILA) has expressed concern that the executive order will lead to a surge in asylum seekers who will be forced to wait in Mexico in “unsafe conditions” while the border is shut down, making them a potential target for regional cartels.

In a policy brief published in anticipation of the executive order, AILA warned that, “People waiting in unsafe conditions will be a boon to cartel expansion and exacerbate crime and fuel more narcotics smuggling on both sides of the border.”

The executive order faced swift backlash from Biden’s critics and political allies alike. While progressives and immigration advocates raised concerns that shutting down the ability of asylum seekers to have their claims processed violates the U.S. refugee law, some Republicans dismissed it as political theater.

"Our country has a well-established procedure for reviewing and vetting asylum claims," Marisa Limón Garza, executive director of the El Paso, Texas-based Las Americas Immigrant Rights Center told USA Today.

"Refusing to use this process renders women, children, and families fleeing violence more vulnerable to those who would prey upon them,” she said.

Immigration policy experts also warned that there could be a sharp increase in migrants trying to cross other areas of the border, according to Politico.

The measure has also been scrutinized, to varying degrees, by some Democratic lawmakers.

“By reviving Trump’s asylum ban, President Biden has undermined American values and abandoned our nation’s obligations to provide people fleeing persecution, violence, and authoritarianism with an opportunity to seek refuge in the U.S.,” said California’s Sen. Alex Padilla, a Democrat, according to the New York Times.

On Tuesday, Mississippi’s Democrat Rep. Bennie Thompson, ranking member of the Committee on Homeland Security, slammed Republicans for blocking the bipartisan legislation, but also stated that he was “concerned about the impact of the Executive Order on vulnerable people coming to the United States for safety and protection.”

“To address the situation at the border for the long term, we must fix our broken immigration system and properly resource border management needs,” Thompson stated in a press release. “I urge my Republican colleagues to join Democrats to pass real, lasting solutions to strengthen border security, reform our immigration system, and protect vulnerable asylum seekers.

The move seems to have done little to appease Republican lawmakers, who have been among Biden’s loudest critics when it comes to the border.

“Why did you wait until now if you were serious about [the border]?” asked Republican Sen. John Cornyn, of Texas, according to Politico. “The simple answer is, he's not serious about securing the border.”

House Majority Leader Steve Scalise also took aim at the executive order during a Republican conference meeting Tuesday, accusing Biden of trying “to throw out another fig leaf to try to distract people from the failures of his own policies.”