President Biden issued an executive order on Tuesday that prevents migrants from seeking asylum at the U.S.-Mexico border when crossings surge, a dramatic election-year move to ease pressure on the immigration system and address a major concern among voters.
The order is the most restrictive border policy instituted by Mr. Biden, or any other modern Democrat, and echoes an effort in 2018 by President Donald J. Trump to cut off migration that was blocked in federal court.
The restrictions kick in once the seven-day average for illegal entries hits 2,500 per day. Daily totals already exceed that number, which means that Mr. Biden’s executive order could go into effect right away — allowing border officers to return migrants across the border into Mexico or to their home countries within hours or days.
Typically, migrants who cross illegally and claim asylum are released into the United States to wait for court appearances, where they can plead their cases. But a huge backlog means those cases can take years to come up.
The new system is designed to deter those illegal crossings.
The border would reopen to asylum seekers only when the number of crossings falls significantly. The figure would have to stay below a daily average of 1,500 for seven days in a row. The border would reopen to migrants two weeks after that.
The American Civil Liberties Union said it planned to challenge the executive action in court.
“The administration has left us little choice but to sue,” said Lee Gelernt, a lawyer at the A.C.L.U, which led the charge against the Trump administration’s attempt to block asylum in 2018 and resulted in the policy being stopped by federal courts. “It was unlawful under Trump and is no less illegal now.”
Mr. Biden’s move shows how drastically immigration politics have shifted in the United States. Polls suggest there is support in both parties for border measures once denounced by Democrats and championed by Mr. Trump as the number of people crossing into the country has reached record levels in recent years.
There would be limited exceptions, including for minors who cross the border alone, victims of human trafficking and those who use a Customs and Border Protection app to schedule an appointment with a border officer to request asylum.
But for the most part, the order suspends longtime guarantees that give anyone who steps onto U.S. soil the right to seek a safe haven. The executive action mirrors a bipartisan bill that had some of the most significant border security restrictions Congress had considered in years. But Republicans thwarted the bill in February, saying it was not strong enough. Many of them, egged on by Mr. Trump, were loath to give Mr. Biden a legislative victory in an election year.
“Donald Trump begged them to vote ‘no’ because he was worried that more border enforcement would hurt him politically,” Andrew Bates, a White House spokesman, said in a statement on Tuesday. He added: “The American people want bipartisan solutions to border security — not cynical politics.”
Immigration advocates and some progressive Democrats have expressed concern that Mr. Biden was abandoning his promise to rebuild the asylum system.
“By reviving Trump’s asylum ban, President Biden has 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.,” said Senator Alex Padilla, Democrat of California.
Tuesday’s decision is a stark turnaround for Mr. Biden, who came into office attacking Mr. Trump for his efforts to restrict asylum. During a 2019 debate, Mr. Biden, then a candidate running against Mr. Trump for the first time, excoriated his rival’s policies.
“This is the first president in the history of the United States of America that anybody seeking asylum has to do it in another country,” Mr. Biden said at the time.
Mr. Trump tried several times to close the U.S. border to asylum seekers, succeeding only in 2020 when he used a Covid-era emergency rule to seal the border to most migrants.
In a call with reporters, Biden administration officials bristled the idea that the president’s executive order is comparable to Mr. Trump’s actions. They emphasized that Mr. Biden’s administration would only turn away asylum seekers during periods of surging crossings.
Immigration has proved to be a huge political vulnerability for Mr. Biden, reaching a crisis in December, when about 10,000 people a day were making their way into the United States.
Biden administration officials, panicked over those numbers, pressed Mexico to do more to curb migration. Mexican officials have since used charter flights and buses to move migrants deeper south and away from the United States.
The number of people crossing has plunged since then, though the numbers are still historically high. On Sunday, more than 3,500 people crossed without authorization, in line with the trends of recent weeks, according to a person with knowledge of the data.
Even with the executive order in place, migrants could still apply for other protections designed for those who can prove they will be tortured in their home country. But that screening has a much higher bar than asylum and as a result, administration officials said they do not expect many migrants to be screened into the United States.
People who cross illegally and do not qualify for those other protections would be subject to a five-year bar for entering the United States.
White House officials believe the order provides Mr. Biden an opportunity to take Republicans to task for dooming the bipartisan bill. That legislation also would have provided billions to the Department of Homeland Security for more border officers and immigration judges.
Mr. Biden cannot provide those resources through executive action. White House officials for weeks said they preferred legislation over presidential proclamation because it would be more lasting and less exposed to a court challenge.
The order also comes with some political risks. Republicans have questioned why Mr. Biden did not take unilateral action at the border sooner. In January, he told reporters that he had “done all I can do” at the border and that he needed help from Congress.
“It’s window dressing. Everybody knows it,” Speaker Mike Johnson, Republican of Louisiana, said of the president’s order at a news conference Tuesday morning. “If he was concerned about the border, he would have done this a long time ago.”
As Mr. Biden considered whether to take executive action in recent months, his administration has taken smaller steps to try to control those backlogs.
In May, the administration proposed a rule change that would allow officers to quickly identify people who are ineligible for asylum, such as those who have been convicted of serious crimes. Currently, they may be allowed to enter the country and wait months, or often years, for asylum proceedings. The proposal must go through a 30-day public comment period.
The U.S. Citizenship and Immigration Services also issued a new policy in May instructing asylum officers to consider whether applicants could find refuge in their own countries before coming to the United States.
