Biden sets asylum limits as large numbers of migrants arrive at U.S.-Mexico border

Migrants who have been arriving at the U.S.-Mexico border after perilous journeys will now be less likely to be able to enter the country, after the Biden administration announced a cap Tuesday on the number of undocumented migrants who can seek asylum at the border.

The federal government will “close” the border to undocumented migrants seeking legal protection in the U.S. when immigration authorities register a daily average of 2,500 or more encounters at the border with Mexico and southern coastal states, like Florida, for a week.

This mean that while the cap is in place, any migrant trying to cross the U.S.-Mexico border or arriving by boat or raft through the Florida Straits will be sent quickly back to Mexico or deported to their home countries unless they have prior authorization to present their asylum cases or fall under very limited exceptions.

The asylum limits will be in place only for people who cross the border unlawfully, meaning those trying to cross the border without a visa and are undetected between ports of entry.

The new measures give U.S. border agents the power to determine a migrant’s fate instead of an immigration judge. Currently, many migrants are allowed into the U.S. after passing an interview showing they have a “credible fear” of being persecuted or tortured if returned home. Once paroled in, they must convince an immigration judge they have a claim to protection in the U.S., a process that can take up to seven years because of immigration backlogs.

The new rules are meant to control the backlog, but critics say it also will lead to those with genuine fear being turned away and sent back to countries where they face prosecution.

Under the new rule, migrants will be put in fast-track deportation proceedings. They will only be offered a “credible-fear interview” if they explicitly say they are afraid to return home or could face persecution or torture. Officials said that migrants claiming a “reasonable probability of persecution or torture” will be held to a higher standard for entry into the U.S. than what is currently applied.

The 2,500 daily average limit does not affect those who book appointments to present their asylum case through the CBPOne app, a phone application migrants use to schedule appointments with immigration authorities at the border. Also not counting toward the daily 2,500 limit: lawful permanent residents, people with visas, unaccompanied minors, people facing a medical emergency or a threat to their life, and trafficking victims.

The limit is not permanent, and it will be lifted two weeks after the Department of Homeland Security deems that the number of daily encounters drops to a more manageable level, set at an average of 1,500 or less for seven consecutive days.

The policy, the U.S. officials said, responds to a lack of congressional action and an overwhelming volume of undocumented migrants that the federal government cannot effectively manage. The new measures will “significantly increase the speed and the scope of consequences for those who cross unlawful or without authorization and allow the departments to more quickly remove individuals,” a senior administration official said.

The announcement Tuesday comes amid an election year in which immigration is at the front and center of a fierce presidential race. Both immigration rights activists and Republicans have blasted Biden for his handling of immigration issues.

On Tuesday, Biden officials criticized Republicans in Congress for not passing a bipartisan deal on the border and emphasized that the newly enacted measure would not allocate personnel and resources to the southwest border.

“President Biden believes we must secure our border,” the White House said in a statement. “That is why today, he announced executive actions to bar migrants who cross our Southern border unlawfully from receiving asylum…But we must be clear: this cannot achieve the same results as Congressional action, and it does not provide the critical personnel and funding needed to further secure our Southern border.”

Advocates who have criticized the Biden administration ahead of the announcement say the measure is at least partially politically driven, will place migrants in danger and bar some with legitimate asylum claims from seeking refuge in the U.S.

“Voters did not vote Trump out of office only to get Trump-era immigration policies under a Democratic administration. Instead of ineffectively trying to be more anti-immigrant than Trump, the Biden administration should invest more in policies proven to work,” said Yareliz Mendez-Zamora, federal campaign lead for the Florida Immigrant Coalition. Biden officials on Tuesday rejected comparisons to Trump border policies, saying that they would not separate families and offered exceptions to the measure which the previous administration did not.

The Haitian Bridge Alliance, which advocates for Haitian migrants rights, described the order as a “direct assault on the fundamental human right to seek asylum.” The organization said that the policy would “disproportionately affect those fleeing from countries with high levels of violence and instability, in Latin America, the Caribbean, and the African continent.”

The director of Immigration Studies at the Libertarian Cato Institute, David Bier, said that the order will only generate more chaos at the U.S.-Mexico border.

Biden “ is requiring all asylum applicants to enter legally, yet he is maintaining his artificially low cap on asylum seekers entering at legal crossing points. This means that this action will not cause a single additional person to enter legally. Instead, more people will attempt to evade detection, undermining security,” Bier said.

Cubans, Haitians taking legal pathways

Officials said the number of encounters in the U.S.-Mexico border has decreased but the volume still remains high. Immigration from Cuba, Venezuela and Haiti is on pace to match or surpass record numbers from previous years, but many are taking advantage of new legal pathways put in place by the Biden administration last year targeting those countries.

A new parole program allowing nationals from Cuba, Venezuela, Haiti and Nicaragua to enter and work in the United States for two years promised to stem the flow of migrants from those countries crossing the border. About 439,000 people from the four countries have arrived in the United States through the parole processes through April of this year, according to federal government data. But as the backlog of cases grows, leaving some applicants waiting for over a year, and the situation in their home countries further deteriorates, the number of people trying their luck at the border has increased.

The number of Venezuelans and Haitians coming to the U.S. border in the fiscal year 2024, which started in October, is already over 2022 figures, according to April data published by U.S. Customs and Border Protection. The number of encounters with Cuban nationals has significantly increased this fiscal year after a drop following the announcement of the new parole program in January last year. From October through April, almost 100,000 Cubans have been processed at the border. If the trend continues, the yearly figure could surpass last year’s, when 142,352 Cubans reached the border.

But a Department of Homeland spokesperson said most migrants from those countries come with authorized appointments booked via the CBPOne app. Still, half of the Venezuelans encountered at the border crossed illegally.

Biden administration officials acknowledge the new rule will likely be challenged in court. Current immigration law states migrants can apply for asylum even if they enter the country unlawfully.

Questions remain

There are also questions about how, without more resources and increased cooperation from third countries to accept more deportation flights., immigration authorities can send back what is likely to be a large number of migrants. There are also worries about how the federal government would handle the influx of people coming from countries in other continents, such as China and Afghanistan.

Venezuelan leader Nicolás Maduro stopped accepting deportation flights from the U.S. after the recent reimposition of some oil sanctions by the Biden administration. Deportation flights to Cuba resumed last year, and Cuban authorities said they would be willing to accept more. Despite the turmoil in Haiti, where gangs are threatening to take over the government, deportation flights resumed in April after a temporary pause amid the political instability.

The U.S. officials said they will continue deporting up to 30,000 Cubans, Venezuelans, Haitians and Nicaraguans monthly to Mexico as part of a previously brokered deal with the neighboring country.