Ask PolitiFact: Does Joe Biden's asylum order ‘shut down’ the border?

Sara Swann
·6 min read
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Biden
Biden

President Joe Biden’s recent immigration proclamation would significantly restrict migrants from seeking asylum at the U.S.-Mexico border. But does this action amount to a border "shutdown," as some Democratic politicians have claimed?

Rep. Pramila Jayapal, D-Wash., criticized Biden’s directive, saying it used the same immigration law provision that then-President Donald Trump used in 2017 to restrict immigration from Muslim-majority countries.

"Enforcement-only actions on immigration, like shutting down the border, are the same types of tactics that Trump used. They don’t work," Jayapal said in a Tuesday post on X.

Rep. Lou Correa, D-Calif., also issued a statement Tuesday expressing concern about Biden’s order "to shut down the border."

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"Attempts like this, to ‘close’ the border, do nothing but put lives at risk and dampen our nation’s economic prosperity," Correa said.

Although some Democratic lawmakers criticized Biden’s order as being too strict, Republicans in Congress said it didn’t go far enough to limit the number of migrants crossing the border.

Sen. Marco Rubio, R-Fla., called the order a "joke" in a Tuesday post on X, saying, "It would still allow close to a million people a year to cross illegally."

Immigration experts had mixed responses to Biden’s order; some said it amounted to a shutdown, while others noted that it leaves open certain avenues whereby migrants can enter.

What Biden’s immigration proclamation does

Biden’s proclamation Tuesday says that when the southern border is "overwhelmed," migrants who cross illegally will be barred from receiving asylum and will be subject to expedited removal orders.

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Migrants who come to the U.S. through an official port of entry can seek appointments via U.S. Customs and Border Protection’s CBP One mobile app, according to the Department of Homeland Security. U.S. officials will screen migrants who cross legally and express a fear of persecution or torture if they return to their home country, or an intention to apply for asylum.

"If an individual chooses not to use our legal pathways, if they choose to come without permission and against the law, they’ll be restricted from receiving asylum and staying in the United States," Biden said in a Tuesday speech about the proclamation.

Migrants who cross illegally and do not have a legal basis to remain in the U.S. will be deported and barred from reentering for five years.

The White House and Department of Homeland Security said the directive will take effect anytime the weekly average of daily illegal border crossings reaches at least 2,500. The administration said the directive would be in effect immediately.

If the weekly average of daily border crossings drops to 1,500 or fewer for 14 consecutive days, regular asylum processing will resume, the Biden administration said. The last time border crossings were below that threshold was July 2020, in the early months of the COVID-19 pandemic, according to the Washington Office on Latin America, a research and human rights advocacy group.

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Biden’s proclamation does not apply to "lawful permanent residents, unaccompanied children, victims of a severe form of trafficking, and other noncitizens with a valid visa or other lawful permission to enter the United States," the Department of Homeland Security said.

What immigration experts said about Biden’s order

Mario Russell, executive director of the Center for Migration Studies, told PolitiFact he sees this new rule as effectively closing the border.

"Turning people away and not allowing them access to the asylum adjudication system when they present themselves between ports of entry means that, in effect, the border will be shut down," Russell said.

Russell noted that there are few appointments available to migrants through the CBP One mobile app. He called the border crossing threshold that triggers the order "disturbingly low."

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Colleen Putzel-Kavanaugh, associate policy analyst at the Migration Policy Institute, disagreed that Biden’s action amounts to a "border shutdown." She said it’s "not feasible for any president to fully shut down the border, as regular trade and travel must still occur."

Biden’s directive means asylum access will be further restricted when migrant apprehensions reach a certain threshold. Migrants screened for other protections will have to pass higher standards, Putzel-Kavanaugh said. These other protections, if granted, allow migrants to stay in the country but don’t have the same benefits as asylum, such as a pathway to permanent U.S. residence.

"It is possible that this could have a deterrent effect in the short term and result in a reduction of people who enter the country," Putzel-Kavanaugh said. "But all apprehended migrants must still be processed, and the capacity constraints faced by (the Department of Homeland Security) will remain until Congress fully funds the immigration system."

Monika Langarica, senior staff attorney at UCLA's Center for Immigration Law and Policy, said Biden’s directive "does not shut the door to newcomers altogether" because migrants will continue to be processed under the new guidance.

"Saying this amounts to a ‘border shutdown’ is imprecise because it simplifies what is actually a complex rule that will cause a lot of confusion for people seeking asylum," Langarica said.

Theresa Cardinal Brown, immigration policy director at the Bipartisan Policy Center, said in an X post Tuesday that Biden’s order will not close or shut down the border because migrants can still request asylum at ports of entry through the CBP One app and business at ports will continue.

"It's not like the border has just one set of gates that can get locked with a ‘we're closed’ sign," Brown said.

Our sources

This article originally appeared on Austin American-Statesman: Ask PolitiFact: Does Joe Biden's asylum order ‘shut down’ the border?