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Biden signs order tightening border with Mexico when crossings surge

Men seeking asylum are detained by Border Patrol.
Men seeking asylum are detained Monday by Border Patrol after crossing from Mexico into the United States.
(Robert Gauthier / Los Angeles Times)
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President Biden signed a proclamation Tuesday that bars migrants from seeking asylum along the U.S. border with Mexico while crossings are high, a change designed to make it harder for those who enter the country without prior authorization.

Under a new interim rule issued by the Biden administration, the president can put the border restrictions into effect when average border arrests surpass 2,500 migrants for seven days in a row — as was the case Tuesday. The rule also raises the legal bar for an asylum claim at the border from reasonable possibility the migrant will face torture at home to reasonable probability it will happen.

The heightened restrictions were scheduled to go into effect just after 9 p.m. Pacific time and would end two weeks after the number of crossers stopped at the border dips below 1,500 for more than a week. For most of the last nine years, there have been more than 1,500 border stops per day.

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“This action will help us gain control of our border, restore order into the process,” Biden said during a press conference Tuesday. “This ban will remain in place until a number of people trying to enter legally is reduced to a level that our system can effectively manage.”

The change comes as the White House and Democrats play offense on the border and immigration, one of the top issues ahead of the presidential election.

May 9, 2024

The restrictions would not apply to those who enter at official ports of entry or use other legal means, including those who use a relatively new mobile app to request an appointment. They would also exempt certain groups, including unaccompanied children, victims of severe forms of trafficking and people with dire medical emergencies or extreme threats to life and safety.

Administration officials defended their efforts to secure the border, saying they have returned more migrants in the last 12 months than in any year since 2010. They sought to blame Republicans for Congress’ failure to pass a bipartisan bill that would have given the administration more money and authority to control the border.

People with young children walk with an officer.
A family seeking asylum is detained by Border Patrol after crossing from Mexico into the United States.
(Robert Gauthier / Los Angeles Times)

Officials conceded that the president’s executive action, which is likely to face legal challenges, is essentially a stopgap. The lack of additional funding for resources at the border, along with potentially limited cooperation from Mexico and migrants’ home countries, could also hamper the administration’s efforts.

Biden slammed Republicans in Congress during his speech Tuesday, saying many legislators abandoned the bill “because Donald Trump told them to.”

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“Frankly, I would have preferred to address this issue through bipartisan legislation, because that’s the only way to actually get the kind of system we have now that’s broken, fixed — to hire more Border Patrol agents, more asylum officers, more judges. But Republicans left me no choice,” he said.

While Mexico has agreed to take migrants from several Latin American countries, the Biden administration is facing an increase in arrivals from other continents, including Asia. Officials said they were working to strengthen deals to fly people to India, China and other countries of origin, but it remains a challenge.

Officials have faced a barrage from critics on the right, who blame Biden for what they call an out-of-control border, and on the left, who accuse him of replicating xenophobic policies advanced by former President Trump. Officials took pains to differentiate their policies from Trump’s most well-known practices, including attempts to ban the entry of people from Muslim-majority countries and to separate children from their families.

President Biden and his Mexican counterpart, Andrés Manuel López Obrador, spoke about cooperating on migration policy during their latest call.

April 29, 2024

“We will not separate children from their families,” said one official. “It is not only inhumane, it’s grossly ineffective.”

Sen. Alex Padilla (D-Calif.), who chairs the Senate judiciary subcommittee on immigration, citizenship and border safety, criticized Biden’s decision, saying it would be ineffective and “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.”

Biden’s border policy places Gov. Gavin Newsom — who sharply criticized Trump’s calls to end the asylum system and threat to close the border in 2018 — in a tricky political position. Newsom, an ally of the president and a top surrogate for his reelection campaign, called out Republicans in Congress in a post on X for voting against more resources for border security.

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“Only thing they’re interested in is playing politics,” Newsom posted Tuesday.

In a separate statement, the governor’s office said immigration is vital to California, and Biden’s “leadership has bolstered border security.”

A row of men seeking asylum sit by a road next to an officer.
Men seeking asylum are detained by Border Patrol after crossing the border.
(Robert Gauthier / Los Angeles Times)

The pursuit of asylum, regardless of how one arrives on U.S. soil, is a right under the federal Immigration and Nationality Act and international law. That issue proved problematic for the Trump administration’s efforts to limit border crossings, and it could trip up Biden’s latest order as well.

Biden is relying on two provisions of immigration law to justify his executive actions, including section 212(f) of the Immigration and Nationality Act, which allows a president to suspend the entry of individuals or classes of migrants if it’s in the national interest. Trump also used that section to bolster his travel ban. Though it was challenged, the Supreme Court upheld a revised version of the ban.

“People like the ACLU and other immigrants rights organizations are sure to argue that in this case, section 208 of the immigration statute explicitly allows someone to apply for asylum, whether they cross at a port of entry or enter illegally between a port of entry. And so they’re going to argue that 212(f) does not extend that far,” said Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School. “That’ll be what a court has to decide.”

A legal challenge would likely take months or years. The American Civil Liberties Union said Tuesday in a statement that it plans to challenge the executive order in court.

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“It was illegal when Trump did it, and it is no less illegal now,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said.

Biden’s decision was applauded by some lawmakers who represent areas along the border, including Rep. Greg Stanton (D-Ariz.), who called it a “decisive, commonsense action to restore order at the southern border at a time when Congressional Republicans continue to use it as a political football.”

Amy Fischer, director of Refugee and Migrant Rights at Amnesty International USA, said the executive action “plays into false narratives about the invasions at the border and advances a policy grounded in white supremacist ideas at the expense of people in search of safety in the U.S.”

“President Biden’s action sets a dangerous international precedent as a first-of-its-kind numerical cap on asylum, limiting the number of people who can claim asylum in the U.S. and effectively shutting down the U.S.-Mexico border, using the same legal authority that the Trump administration used to implement the dangerous and xenophobic Muslim and African travel bans,” Fischer said.

Men seeking asylum are detained by Border Patrol.
(Robert Gauthier / Los Angeles Times)

Immigration has been one of Biden’s thorniest problems, practically and politically. He campaigned in large part on reversing Trump’s most hard-line policies and rhetoric, but after Biden assumed office, border crossings and arrests rose dramatically.

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Chad Wolf, who was head of the Homeland Security Department in Trump’s administration, said during an appearance Tuesday on Fox News that he doesn’t believe the border plan will work and is “too little, too late.”

“They’ve been telling the American people there’s no crisis along that border now for three years, and they’ve tried to convince the American people they can’t take executive action,” he said. “Five months out from an election, now they’re serious about border security. I don’t buy it, and I don’t think the American people buy it.”

Polls show that many voters rate immigration and the border as a top issue for the presidential candidates, alongside the economy, character, democracy and abortion. It’s the area where they are most likely to rate Trump ahead of Biden, according to an ABC News poll released last month. The poll found that 47% of Americans trust Trump more on immigration, compared with 30% who trust Biden more.

Times staff writer Taryn Luna contributed to this report.

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