What's Behind Biden's “Immediate” Executive Order to Close the Border to Crossing Undocumented Immigrants?

Uncertainty mounts ahead of President Joe Biden's signing of an immigration executive order this Tuesday that would authorize border closures if there is an influx of undocumented immigrants and severely affect existing asylum policy.

Last week, media reported that measures Biden was considering included temporarily sealing the border and suspending long-standing protections for asylum seekers in the United States.

The move, which has been under consideration by the White House for months, was alluded to by Biden during an exclusive interview with Univision News in April, in which the president promised to “look into whether or not I have that authority.” close range).

“I would have that authority under the law. When you have more than 5,000 people a day trying to cross the border, you can't manage it, (we) can slow it down. (But) there's no guarantee of that. Without the law (support from Congress) I would have all that authority.” I will keep it,” he said.

On Friday, after the possibility of an immigration executive order was raised again, the White House told Univision Notices via email that the administration “continues to explore a number of policy options, and we remain committed to taking action to fix our broken immigration system.” Immigration”.

An official added, “From day one (January 20, 2021, when Biden took office), the administration is always evaluating what steps can be taken. “A final decision has not been made on what, if any, additional administrative action can be taken.”

In 2017, Trump signed executive orders authorizing his administration to combat undocumented immigration and implement policies that affect legal immigration. But those measures were challenged in the courts, which ordered a rollback.

The White House has recognized that this is an urgent resource and has tasked Republicans with implementing it.

“Republicans in Congress don't care about securing the border or fixing America's failed immigration system,” reads a response sent to Univision Notices.

“If they had, they would have voted to implement the toughest border law in history. Instead, they are putting party politics before the national security of our country,” he added.

Last May, Senate President Charles Schumer (D-NY) failed in his second attempt to pass a bipartisan bill that would have given Biden $14 billion to end the crisis that began in 2013, leading an emergency plan on the Mexico border. For the last three years, after the Covid-19 pandemic.

The funds will be used to hire 1,500 additional Customs and Border Protection personnel, more than 1,200 additional Immigration and Customs Enforcement personnel, more than 4,300 additional asylum officers and 100 additional immigration judges, according to the Department of Homeland Security (DHS), Alejandro Mayorgas.

But the Senate's rejection left Biden without legislative options, which decided to use the executive power at his disposal to end the emergency at the border and thereby undercut Republicans for unleashing the crisis by reversing former President Donald Trump's zero-tolerance policy, which until now has been about respect for immigration due process, which Biden has defended. That leaves the debate.

Reports of a possible immigration executive order from Biden this Tuesday are worrying lawyers familiar with the matter. “Administrative action to restrict entry at the border will make it harder to qualify for asylum,” warns Stephen Yale-Lohr, a professor of immigration law at Cornell Law School and co-author of the landmark 22-volume series Immigration Law, on Univision Notices.

“The administration may also limit the number of people who can apply to enter the United States,” he added. Rumors so far “suggest that President Biden will use a section of the U.S. immigration law known as 212(f) as authority for the restrictions,” he said in an email.

Former President Trump “tried to use Section 212(f) to restrict entry into the United States, but was challenged in court,” Yale-Lohr recalled.

“Courts have said that all presidents have broad authority over immigration because immigration affects foreign relations and sovereignty. But that power is not absolute,” he warns.

Yale-Lohr added, “Immigration rights advocates will immediately sue President Biden to try to block his executive action from going into effect. Ultimately, the Supreme Court will have to decide when a president goes too far on immigration.”

Section 212(f) is a “controversial” tool, says Angel Leal, an immigration and constitutional attorney practicing in Miami, Florida. “It all depends on how the president tries to implement it,” he said.

Section 212(f), which can be invoked in the event of a national emergency, “would prohibit the granting of asylum to aliens who entered irregularly or crossed the border illegally, which would affect the right to asylum,” Leal said. It is currently in effect.”

Asked whether this type of executive order would be challenged in the courts, Leal said, “It all depends on the interpretation the executive branch makes of it and the application it gives to the regulation.”

He also indicated that if Biden chooses this course of action, “absent action by Congress, it could be a strategy the president would exercise within his executive powers when it rejected bipartisan immigration legislation for the second time. It may not be upheld by the courts.”

However, Leal noted that Biden's potential immigration executive action “will not take effect” immediately based on recent data on border apprehensions provided by Border Patrol agents. and years.

He noted that other aspects of the potential order, such as giving border agents extraordinary powers, could harm the immigration process approved by the Legislature.

In the first 21 days of May, Border Patrol agents recorded a daily average of about 3,700 migrant apprehensions between ports of entry, a 54% drop from the daily average of 8,000 in December.