Biden considering new executive action to restrict asylum at the border, sources say

The White House is considering executive action to restrict migrants’ ability to seek asylum at the US-Mexico border if they crossed illegally – a maneuver reminiscent of controversial action from the Donald Trump era and is sure to invite fierce backlash from immigration advocates and progressives.

The handling of the US-Mexico border has dogged President Joe Biden for years as migration across the Western hemisphere reached record levels and resulted in thousands of migrants arriving at the border.

The action being considered at the White House appears to be an extension of some of the toughest measures in the border compromise legislation tanked by Republicans—and another sign of the White House’s efforts to show they’re aggressive on border security ahead of Election Day.

No final decision has been made on the action under consideration, which involves using an authority known as 212f between ports of entry to try to clamp down on unlawful border crossings. An administration official noted that the administration often evaluates actions that could be taken, but they don’t always move forward.

It’s unclear how the proclamation under discussion would be executed and what, if anything, would be different from what was enacted during the Trump administration.

The Justice Department’s Office of Legal Counsel has been reviewing the proposed executive order to determine whether it could sustain legal challenges, a person briefed on the matter said. But some Justice officials have expressed doubts that proposed changes, aimed at trying to address previous court rulings against the Trump-era order, could survive litigation that is sure to follow any move by the Biden administration to use executive action.

A White House spokesperson did not comment on the actions under consideration.

“The Administration spent months negotiating in good faith to deliver the toughest and fairest bipartisan border security bill in decades because we need Congress to make significant policy reforms and to provide additional funding to secure our border and fix our broken immigration system,” White House spokesperson Angelo Fernández Hernández said in a statement.

“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected. We continue to call on Speaker Johnson and House Republicans to pass the bipartisan deal to secure the border,” he added.

Biden suggested earlier this month he would shut down the US-Mexico border if the proposed border legislation had been signed into law – effectively embracing one of the toughest measures included in the package.

“If the bill were law today, it would qualify to be shut down right now while we repair it,” Biden said.

Trump tried to close the US southern border to asylum seekers crossing the border unlawfully while in office, invoking provisions in immigration law, but was blocked by the courts.

In 2018, Trump tried to use 212f, which gives the president broad authority to implement immigration restrictions to restrict border crossings. But ultimately, a federal appeals court ruled that the authority conflicts with asylum law and the 212f authority doesn’t override it.

The case – known as East Bay Sanctuary Covenant v. Trump – served as an example of why the president is limited in his ability to shut down the border. It’s likely to face legal challenges if the White House were to move forward with it.

“President Biden has broad powers under the immigration statute, but they are not unlimited. Section 212(f) of the Immigration and Nationality Act allows a president to suspend the entry of noncitizens who are ‘detrimental to the interests of the United States,’ but that doesn’t mean he can just shut the border to everyone,” Stephen Yale-Loehr, an immigration law expert, previously told CNN.

Administration officials, facing dwindling border security funds, have also discussed whether declaring a national emergency could shore up funds, two sources said. The White House supplemental request includes $14 billion in border security but remains stalled in Congress.

The Biden administration has taken other steps to try to tighten asylum at the US-Mexico border. Last year, the administration released a regulation that largely barred migrants who traveled through other countries on their way to the US southern border from applying for asylum in the United States — marking a departure from decades-long protocol.

At the time, administration officials rejected comparisons to the Trump administration, saying that it was not a categorical ban on asylum and emphasizing efforts to expand access to legal pathways to the US.

Migrant apprehensions have dropped by 50% in January, compared to December, according to federal data. Homeland Security officials have attributed the decline to ongoing high-level talks between the US and Mexico, which has doubled down on enforcement, but have cautioned that encounters historically drop in January before ticking up again.

Acting US Customs and Border Protection Commissioner Troy Miller conceded authorities still face hurdles on the border, saying in a statement this month: “We continue to experience serious challenges along our border which surpass the capacity of the immigration system.”

In January, the US Border Patrol reported 124,220 encounters along the US-Mexico border. Notably, there was a significant drop in Venezuelans — nearly 11,600 compared to 57,851 in December. Both the US and Mexico have restarted deportation flights to Venezuela.

This story has been updated with additional information.

CNN’s Evan Perez contributed to this report.

For more CNN news and newsletters create an account at CNN.com