Biden-Harris Administration Weighs Changes to Border Executive Order to Appear Tough on Immigration
FAIR Take | September 2024
Last week, reports surfaced that the Biden-Harris Administration is considering changes to its border executive order and the regulation adopted to implement it. The executive order, (technically a presidential proclamation) tightened the process for seeking asylum between the ports of entry, while leaving existing asylum procedures in place for illegal aliens who arrive at ports of entry. The order went into effect the moment it was signed and has been in effect ever since.
The changes being considered by the Biden-Harris Administration appear to be a political calculation to keep the border crisis at bay until it’s convenient to fully reopen the border. The first proposed change would extend the period asylum restrictions between the ports of entry are in place. Under the original rule, the government may only lift the asylum restrictions 14 days after the seven-day average of encounters between ports of entry drops below 1,500. The contemplated changes would only allow asylum restrictions to be lifted when the seven-day average of Border Patrol encounters stays below 1,500 for 28 days.
In addition to lengthening the duration of asylum restrictions, the Biden-Harris Administration is also considering raising the threshold of encounters needed to lift the asylum restrictions. Under the June rule, illegal aliens encountered at ports of entry, as well as unaccompanied alien children (UACs) from non-contiguous countries, do not count towards the threshold to activate or deactivate the asylum restrictions between the ports of entry. The new changes appear set to begin counting all UACs between ports of entry toward the deactivation threshold.
While these changes under consideration may offer limited improvements to the expulsion authority, numerous loopholes and exceptions from the original order would remain, undermining the rule’s very purpose. For example, these changes will do nothing to discourage illegal immigration because large groups of illegal aliens will still be exempt from asylum restrictions, including: (1) asylum-seekers, would-be parolees, and other illegal aliens processed at ports of entry through the CBP One mobile app; (2) any alien the Department of Homeland Security (DHS) decides to release “based on the totality of the circumstances;” and 3) any alien who DHS authorizes to enter “due to operational considerations.” The Biden-Harris rule even ensures that illegal aliens subject to the asylum restrictions will have another opportunity to claim asylum if they can demonstrate “exceptionally compelling circumstances.” And aliens whose claims are rejected by asylum officers under that process can appeal the determination.
Encounters at ports of entry, exempt from the expulsion authority, have skyrocketed under the current administration. Indeed, in early Fiscal Year (FY) 2021 only about 20,000 people entered at ports of entry each month. But by the beginning of FY2023, the number of encounters at ports of entry had more than tripled and increased by over 500% by the end of that fiscal year. So far in FY 2024, the number of encounters at ports of entry has already reached a record high of 1.15 million and shows no signs of slowing.
For over three years, the Biden-Harris Administration has consistently pushed an open-borders, anti-enforcement agenda and created unprecedented chaos at our borders. Now, as illegal immigration has become one of the single most important issues on the minds of voters across the country, the administration is attempting to shift towards a “tough on the border” stance. Not only is this new rhetoric inconsistent with the Biden-Harris Administration’s longstanding and well-established record on immigration, but there is no indication that the shift is anything but a temporary effort to keep public discontent at bay until they feel the political climate is “safe” to lift the restrictions—or repeal the executive order altogether.
To read FAIR’s comment on the Securing the Border rule, click here.