washington — U.S. President Joe Biden announced an executive order on Tuesday that will temporarily restrict asylum eligibility at the U.S.-Mexico border whenever the number of migrants crossing unlawfully or without authorization reaches a daily average of 2,500. 

Biden’s executive order says those who cross into the country illegally won’t be eligible for asylum unless there are extraordinary reasons why they should be allowed to stay in the United States. 

“These actions alone aren’t going to fix our immigration system, but they can help us a good deal in better managing what is a difficult challenge,” Biden said in his remarks at the White House.  

According to U.S. officials, the temporary asylum restrictions will come into effect when the average daily border encounters exceed 2,500, and they will be suspended when that number falls below 1,500. 

These restrictions take effect immediately. Data first reported by CBS News shows U.S. Border Patrol officials recorded 3,000 migrant apprehensions on May 20, and an average of 3,700 per day during the first 21 days of May.   

Who is affected? 

Anyone, regardless of nationality, crossing unlawfully along the southern border.  

While the restrictions are in effect, migrants who cross the southern border and are processed for expedited removal will be referred for a credible fear screening with an asylum officer only if they express a credible fear of returning to their country — meaning “a fear of persecution or torture” — or an intention to apply for asylum, explained a Department of Homeland Security official.

Immigration advocates call this a shout test.  

“If you’re able to shout and claim asylum, then you might be able to get through. But what we know is that people don’t always speak English. They don’t always know that is the way that they have to seek safety,” Amy Fischer, director of refugee and migrant rights at Amnesty International USA, told VOA.  

Officials spoke on background, a method often used by U.S. authorities to share information with reporters without being identified. The DHS official also addressed a question about migrant removal. 

“[These measures] will apply both to individuals from our hemisphere as well as eastern hemispheric migrants. In terms of returns to Mexico, we will continue to return nationals of Cuba, Haiti, Nicaragua and Venezuela per our previous arrangement,” a DHS official said.  


Certain migrants are exempt from these restrictions, including unaccompanied children, victims of human trafficking, migrants facing medical emergencies, and those with valid visas or other lawful permission to enter the U.S.  

People who use lawful entry processes, like the U.S. Customs and Border Protection’s CBP One mobile application or other designated pathways, won’t be affected by this guideline.  


Those who cross illegally when the restrictions are in place and do not establish a reasonable probability of persecution or torture in their country will be “promptly removed, and they will be subject to at least a five-year bar to reentry and potential criminal prosecution,” the DHS official said. 

Why now? 

During a call with reporters, officials from DHS and the Justice Department said these restrictions were necessary in the face of the summer, when migrant encounters typically increase.  

The tougher stance on border security is also a response to a heightened concern over immigration among American voters ahead of the November 5 elections.  


Some Republicans said Biden is issuing this order considering the upcoming presidential election. 

“With an election just months away, the president hopes that issuing an executive order will demonstrate that he cares about this crisis and is trying to fix it,” Senate Minority Leader Mitch McConnell said on the Senate floor. 

Immigration advocates strongly criticized the move, calling it “a total gutting” of asylum protections.  

Fischer, of Amnesty International, said this executive order is going to prevent more people from accessing asylum and make it more difficult for people to articulate their claim.  

“[It] does not sort out people that have false or ineffective asylum claims. What it does is, it sorts out the most vulnerable,” Fischer added. 

The ACLU says it will sue to stop the restrictions. 

“We intend to challenge this order in court. It was illegal when Trump did it, and it is no less illegal now,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, in an email to reporters. 

Biden officials disagree, saying the United States will continue to adhere to its international obligations and commitments. 

“These steps will strengthen the asylum system, preventing it from being overwhelmed and backed up by those who do not have legitimate claims,”  the DHS official said. ” … But we are clear-eyed that today’s executive actions are no substitute for Congress taking up and passing the tough but fair bipartisan Senate bill, which would have significantly strengthened the consequences in place at the border.”

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