Members of the Texas National Guard stand near a razor wire fence at the U.S.–Mexico border (OSV News photo/Jose Luis Gonzalez, Reuters).

On June 4, President Joe Biden signed an executive order that drastically changed the rules for those seeking asylum at the southern border of the United States. Effective immediately, the border will be closed to asylum requests if the seven-day average number of daily encounters with migrants is above 2,500, and would reopen two weeks after that figure falls below a daily average of 1,500 for seven consecutive days. The average number of daily encounters has been more than 2,500 since Biden took office; the last time it fell under 1,500 was when the border closed during the Covid pandemic.

This means that, for the foreseeable future, the only way to register an asylum claim is to make an appointment with a border agent through the CBP One app. If migrants do manage to secure one of the small number of slots, the standard they must meet to receive asylum will be much higher. If a migrant crosses the border illegally and applies for asylum on U.S. soil—which was the usual way to claim asylum before the order—he or she will be denied asylum and barred from reentering the United States for five years. The order makes an exception for unaccompanied minors, migrants with medical emergencies, and those who can prove a risk of imminent harm. But the vast majority of people who want to make asylum claims will have a much harder time doing so.

The vast majority of people who want to make asylum claims will have a much harder time doing so.

This may sound familiar. In 2018, President Donald Trump used the same legal framework to halt asylum applications. His order was eventually struck down by a federal court in a case brought by the American Civil Liberties Union, and the ACLU has announced that it is also suing the Biden administration. In a statement, the ACLU pointed out that U.S. law protects the right of people to claim asylum regardless of how they entered the country and that Biden’s executive order could create “insurmountable obstacles” for people who should have access to asylum.

Polls show that immigration is a major issue in this year’s election. In 2018, Democrats were happy to criticize Trump as xenophobic for his attempt to halt asylum claims; in 2024, many Democrats from blue states and cities stood alongside Biden as he announced his new policy. Democrats have faced pressure from their constituents as more and more migrants waiting for their asylum hearings move to cities throughout the country, at times overwhelming local social services. This puts Biden in a difficult position. Our current immigration system is untenable, but reforming it would require action by Congress, and Republican lawmakers would rather campaign on the problem than do anything to solve it while a Democrat is in the White House. At Trump’s behest, they rejected a bipartisan immigration bill that would have given them many of the more punitive immigration measures they’ve demanded.

But Biden’s executive order is ultimately a deterrence measure, and we’ve seen over many decades what deterrence really does: the number of border crossings may drop a bit, but migrants’ journeys will become more perilous. There will be more incentive for them to evade border patrol—and so more reason to travel via dangerous routes or to use human smugglers. Deterrence has been the go-to strategy for dealing with immigration for decades. Biden’s executive order has rightly been described as Trumpian, but it is also Clintonian and Obamian. What is needed is a strategy that addresses the global crises—political, economic, environmental—that push desperate people to seek safety elsewhere, and immigration policies that protect their right to do so.

Regina Munch is an associate editor at Commonweal.

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Published in the July/August 2024 issue: View Contents
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