On Tuesday, President Joe Biden announced executive actions that would impose sweeping changes to how the nation treats asylum seekers. Anyone who attempts to cross the border outside of a designated port of entry will be considered presumptively ineligible for asylum and immediately deported. The exceptions are limited. 

The new restrictions will go into effect when border encounters outside ports of entry exceed an average of 2,500 per day for a week. In recent weeks, there have been about 3,700 daily encounters. The restrictions will only be lifted when daily encounters average less than 1,500 per day for a week. The last time that happened was July 2020, in the early days of the pandemic. In other words, these restrictions will remain in place indefinitely. 

Notably, the restrictions Biden has imposed via executive action are more severe than a bipartisan deal negotiated earlier this year in the Senate. Under that legislation, which was scuttled by House Republicans at the behest of former President Donald Trump, asylum seekers would only be presumptively ineligible once daily encounters exceeded 5,000 per day over a week. (The Department of Homeland Security would have also had the authority to impose the restrictions on asylum seekers once daily encounters exceeded 4,000 per day.) The higher threshold meant there was a greater possibility of the restrictions being lifted.

The Senate legislation also included additional provisions, including increased funding for immigration courts. That funding would have allowed asylum seekers to have their claims adjudicated more quickly. There are currently 2.4 million pending cases. It would also have invested $1 billion to address the root causes of increased migrants — economic and political instability in Central America. Another $9.3 billion was allocated to help resettle refugees and provide care for unaccompanied children. This is all missing from the new policy because Biden cannot appropriate funds via executive action. 

The political impetus for Biden's new policy is clear. Immigration is one of the top issues for voters, and is top of mind for many independents who will play a critical role in the upcoming presidential election. Moreover, polls consistently show voters prefer Trump's hardline approach toward immigration policy. Unilaterally imposing severe restrictions on asylum seekers appears to be an effort to diffuse the issue politically. 

But the political realities do not obviate the human and moral implications of the new restrictions. The Refugee Act of 1980, which passed Congress unanimously, gives migrants inside the United States the right to claim asylum based on "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." It was enacted "in part to make amends for the country’s shameful refusal to accept Jewish refugees during the Holocaust." The new policy announced by Biden abandons this principle for the foreseeable future. 

As the ACLU's Lee Gelernt explained earlier this year, migrants with legitimate fears of persecution often have no choice but to cross outside of a port of entry "because cartels push them to places [other than ports of entry] to cross" and "because the ports of entry can be hundreds of miles away." Presenting yourself as an asylum seeker at a port of entry also requires making an appointment via a mobile app, and there are far more asylum seekers than appointments available. 

In a statement released Tuesday, the ACLU alleges that, under Biden's new policy, the federal government will "rush vulnerable people through already fast-tracked deportation proceedings, sending people in need of protection to their deaths." There are some exemptions that will allow people to seek asylum even when the restrictions are in place. Unaccompanied minors are exempt from the restrictions. Otherwise, migrants need to prove they (or a family member they are traveling with) "faced an acute medical emergency," "faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder," or was a “victim of a severe form of trafficking in persons.” 

These standards are much higher than those in the Refugee Act and will be difficult, if not impossible, for most migrants to prove. Further, there is no real due process to evaluate the claims of migrants. They will receive a "credible fear screening" from an asylum officer, and that is it. Those that fail to demonstrate a credible fear will be deported "in a matter of days, if not hours," according to an administration official. 

Biden's policy is nearly identical to a policy implemented by Trump on November 9, 2018. Trump issued a proclamation announcing that migrants were not able to seek asylum outside designated ports of entry, subject to a few narrow exemptions. The primary difference is that Trump's order was not triggered or repealed by the number of border encounters. Instead, it expired in 90 days. Trump later issued several extensions.

The legality of the Biden order

Biden and Trump cited the same legal authority — sections 212(f) of the Immigration and Nationality Act — for their orders limiting asylum outside of designated ports of entry. Trump reportedly referred to it as his "magical authority" to restrict immigration. That law states the following:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

But after Trump issued his proclamation, a group of migrants and non-profit groups sued. A federal judge ruled in favor of the plaintiffs. He invalidated Trump's order, saying it ran afoul of 8 U.S.C. § 1158(a):

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status may apply for asylum…

The ACLU plans to sue to block the implementation of Biden's new policy. 

The myth of the migrant crime wave 

Although Biden's policy is similar to Trump's, the former president is not a fan. On Tuesday, the Trump campaign criticized Biden’s latest executive order: “After importing more than 15 million illegal aliens into our country and releasing countless criminal migrants who have brutally raped and murdered our citizens this new order will facilitate the release of more illegals as quickly as possible with a smartphone app.” 

For months, Trump and other Republicans have promoted unsubstantiated claims of a migrant crime wave. In April, the Republican National Committee launched a website titled “Biden Bloodbath” claiming “Biden is aiding and abetting an invasion.” These claims have also made their way onto right-wing media outlets: in the first 10 weeks of 2024, Fox News ran nearly 400 weekday segments on “migrant crime.” “There is a migrant crime spree killing Americans” Fox News Host Jesse Watters declared. 

Trump has made these baseless claims the centerpiece of his 2024 campaign. The “United States is being overrun by the Biden migrant crime,” Trump falsely claimed in a speech on the border earlier this year. 

But data does not support this assertion. 

Crime analyst Jeff Asher recently found that there has been "no evidence of increasing violent crime along the US border with Mexico” since 2010. Given that law enforcement agencies do not typically collect information on an arrestee’s immigration status, Asher looked at "violent crime across the 14 counties along the Texas border with Mexico” as a proxy for migrant-driven crime. If migrants were driving an uptick in crime, then this would be reflected in crime data along the border. But this wasn’t the case. “The 14 counties along the Texas-Mexico border have seen a relatively steady violent crime rate below that of the rest of their state and the nation as a whole,” Asher observed. 

Nationwide, there has also been no evidence of a migrant crime surge. In 2023, homicide and violent crime dramatically declined. And, this year, cities that have received the most migrants as a result of Texas’ controversial busing program have seen crime levels drop, an NBC analysis found. 

If anything, research shows that immigration is linked to decreases, not increases, in violent crime. Neighborhoods with higher concentrations of immigrant populations also have lower crime rates, multiple studies found. Between 1990 and 2014, undocumented immigration, in particular, was “generally associated with decreasing violent crime,” according to one study. 

Nevertheless, Trump insists that “the border invasion and migrant crime will not stop until Crooked Joe Biden is deported from the White House.”