Most Illegal Aliens Arriving at Ports of Entry Will be Exempt from Biden’s Executive Order

FAIR Take | June 2024

The media has hailed President Biden’s June 4 “Proclamation on Securing the Border” as a get-tough measure designed to fix the border crisis. The headline for NBC News read, “Biden signs executive action drastically tightening border.” The Associated Press wrote, “Biden prepares an order that would shut down asylum if a daily average of 2,500 migrants arrive.” And The New York Times wrote, “President Biden issued an executive order on Tuesday that prevents migrants from seeking asylum at the U.S.-Mexico border when crossings surge.”

Certainly this is the message President Biden wanted to relay to the American people. Unfortunately, it’s not true. A deeper examination of the President’s executive order shows that it is riddled with so many loopholes as to make it virtually ineffective.

One of the biggest loopholes is that the executive order will not apply to most illegal aliens who cross into the U.S. through official ports of entry. In fact, Section 3 of the proclamation states the order does not apply to aliens who arrive at the southern border “pursuant to a process the Secretary of Homeland Security determines is appropriate to allow for the safe and orderly entry of noncitizens into the United States.” This is consistent with other open-borders policies issued by the Biden Administration, which have steered more and more illegal aliens to the ports of entry to enter the U.S. through fabricated “legal pathways.” These include asylum seekers and would-be parolees using the CBP One app, who, under Biden’s 2023 regulation, must enter through ports of entry. 

Indeed, government data shows that the number of illegal aliens processed at our ports of entry by the Office of Field Operations (OFO) has skyrocketed. In Fiscal Year (FY) 2021, the number was 294,000 (15 percent of total encounters). In FY 2022, that number grew to 552,000 (20 percent). In FY 2023, 1.137 million illegal aliens (36 percent) were processed at ports of entry. And in FY 2024, that number grew to 809,000, a whopping 41 percent of the total. In total, between February 2021 and April 2024, over 2.7 million illegal aliens were processed at ports of entry.

Having legally directed so many illegal aliens to ports of entry, the Biden Administration clearly could not make the executive order applicable to them. Doing so would undermine the open-borders policies the Administration has worked so hard to implement. Thus, the Biden Administration expressly exempted asylum-seekers and would-be parolees who present at a port of entry at the southern border using the CBP One app. It also does not apply to Cuba, Haiti, Nicaragua, and Venezuelan (CHNV) parolees who arrive at interior ports of entry (i.e., international airports). This is not a small exception. To put this in perspective, April data shows that 62 percent of Venezuelans were encountered at ports of entry. For Nicaraguans, the number was 76 percent encountered at ports of entry; for Cubans, 96 percent; and for Haitians 99.5 percent.

In addition to these asylum seekers and would-be parolees, the executive order exempts aliens that Secretary Mayorkas deems “appropriate for [their] safe and orderly entry.” In fact, it exempts illegal aliens using any other program the Administration has designed, any group of illegal aliens it decides to allow entry for “operational reasons,” and any group of aliens who have urgent humanitarian or health needs. Most, if not all, of these aliens will be seeking to enter the U.S. via ports of entry.

Not only will most illegal aliens entering through ports of entry be exempt from the President’s executive order, the number of illegal aliens coming through ports of entry will not even count towards the 2,500 threshold that triggers Homeland Security’s ability to summarily expel migrants.

President Biden’s new proclamation exemplifies the old adage that “the devil is in the details.” Misleadingly advertised as an attempt to “secure the border,” the amount and extent of loopholes in the document indicate that not much will change – especially since none of President Biden’s executive actions that led to the current crisis were ended by the proclamation. The ruthless cartels making billions off of human smuggling have undoubtedly read the document and already have a strategy to exploit its many weak points. The American people deserve true border security, not talking points and false advertising.