Biden Order to Block Most Illegal Immigrants When Crossings Surge, as Election Nears

The White House on Tuesday announced long-awaited executive actions to stop illegal immigrants at the southern border claiming asylum if crossings reach a certain level — a move coming just months before the November election and that could soon see a legal challenge from activists.

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Biden is issuing a presidential proclamation that will temporarily suspend the entry of non-citizens across the southern border once the number of average border encounters exceeds 2,500 a day over seven days, officials said. That will stay in effect until 14 days after there has been a seven-day average of less than 1,500 encounters along the border. Officials said it would make it easier for immigration officers to quickly remove individuals who do not have a legal basis to remain in the U.S.

In the last 24 hours at the border, sources tell Fox there were 5,200 encounters, and it has averaged over 5,000 every day for the past week. There were 179,725 encounters at the southern border in April, compared to 211,992 in April 2023, and 189,357 in March. While those numbers are lower than highs seen in 2022 and 2023, they still remain high compared to pre-2021 numbers.

In doing so, Biden is drawing upon authorities under 212(f) and 215(a)of the Immigration and Nationality Act (INA) which allows presidents to suspend entry of certain categories of foreign nationals. The Trump administration used 212 (f) on a number of occasions, including for the travel ban from certain countries, but it was blocked by a legal challenge from applying it to the southern border. The American Civil Liberties Union (ACLU) said on Tuesday that it intends to launch a legal challenge against the moves announced by Biden.

The order includes a number of exceptions for those coming across the border. It will not apply to visa holders, unaccompanied children, victims of a “severe form” of trafficking, as well as those who face an acute medical emergency or an imminent threat to life or safety. It also does not apply to those seeking entry to the U.S. via ports of entry using the CBP One app — of which around 1,500 migrants are allowed in each day.

It is expected to take place immediately, and will be accompanied by a joint rule restricting asylum eligibility during high border encounters that will be issued by the Departments of Justice and Homeland Security.

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While Republicans have previously urged the administration to use 212(f) to stop illegal crossings, ahead of the announcement lawmakers were unimpressed and called it a move that was too little, too late.

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Other lawmakers claimed it was a cynical move just months out from an election in which Biden is struggling due to his handling of border security. A recent Fox News poll found that seven in 10 voters go so far as to say the White House has “mostly failed” at improving border security.

“It’s a little late, you can’t make this cat walk backwards,” said Sen. John Kennedy, R-La., who described Biden as “polling right up there with fungal infections.”

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