Limits on Asylum at the US-Mexico Border

The border wall between the US and Mexico in El Paso, Texas

A Restrictive, Dangerous Government Action

On June 5th, 2024, President Biden issued an Executive Order (EO) significantly restricting asylum access at the southern border. The EO aims to deter immigration by limiting the number of immigrants who can enter the country, barring asylum seekers for temporary periods, and increasing screening requirements for other forms of humanitarian protection. In short, these regulations result in an asylum ban. These new limitations are unlikely to reduce the number of migrant arrivals at the southern border, and may further harm those in already desperate circumstances.

Issued under the Immigration and Nationality Act sections 212(f) and 215(a), the Executive Order restricts entry of noncitizens crossing the Southern border. When the average crossing per day, over a seven-day period, reaches 2,500 crossings per day, the EO effectively closes the border and restricts legal rights to seek asylum at entry ports. Since 2021, the average border crossings per day have been at or above the 2,500 crossing threshold. Once enacted, the restrictions will be in effect until two weeks after the daily encounter numbers are at or below 1,500 per day between ports of entry, under a seven-day average. Consequently, almost every individual arriving at the southern border will be deemed ineligible for asylum, not based on the viability of their circumstances, but due to the sheer number of arrivals. There are minimal exceptions to the EO, which include individuals with CPB One app appointments (extremely limited), unaccompanied children, trafficking victims, and people who face life-threatening emergencies. 

For migrants who enter the US without authority, the Custom and Border Protection will now only allow migrants four hours to find a lawyer to help them with their case. Without a lawyer, migrants will have to plead their case on their own or be turned back immediately. Previously, migrants had at least 24 hours or more to find a lawyer. Further, migrants at the border who do not express fear of returning to their home countries will be subject to immediate removal from the US; this can occur within a matter of days or even hours. Those who express fear of returning or an intention to seek asylum will be screened by a U.S. asylum officer, but at a higher standard than previously used.

For migrants seeking lesser protections like “withholding of removal” or protection under the Convention Against Torture, there will be extremely limited opportunities for acceptance and legal support. Border officials will no longer ask migrant arrivals if they have a fear of returning to their country, meaning that many people will be quickly deported despite their fear, simply because they do not know they now need to express their fear immediately and unprompted.

In all, there are many unknowns around the implementation of this EO, including what will happen to nationals of countries who have been removed but whose countries decide to accept the return of their citizens or to countries that do not have agreements to accept nationals from other countries from the U.S. This EO is followed by an interim ruling from the Department of Justice and Homeland Security, which works to continually erode asylum protections and deny access to counsel.

These efforts place asylum seekers in new and extended danger. 

Despite this, a Separate, Positive Action

More recently, the Biden administration made it easier for noncitizens who are married to a citizen and have lived in the United States for at least 10 years to attain “lawful permanent residence“.

This is a move that will positively impact thousands of families, but it comes many years later than it could have and does not excuse or make up for the restrictive and dangerous order from early June.

Resources Where You Can Learn More

AP News: News Article on Biden’s asylum restrictions 

Welcoming America: Explainer | Asylum-Restricting Executive Action

Welcoming America: Statement on the Biden administration’s restrictions on asylum seekers

National Immigrant Justice Center: FAQ on Immigration EO