At the end of February, after President Biden’s bipartisan bill collapsed when Republicans backed away from the agreement, the President reportedly told the National Governors Association he was exploring executive actions. The Bill would have, in theory, restricted illegal border crossings, made it more difficult to apply for asylum and speed up deportations while simultaneously making more visas available legally.

Since this time there has been an executive action, announced last Tuesday, that bars migrants crossing the border illegally from seeking asylum — with some limited exceptions. Instead, they would be turned away immediately. The action and accompanying rule from the Biden administration allows the president to suspend asylum claims in between ports of entry when there is an average of 2,500 crossings a day over a seven-day period. That threshold, administration officials said, has already been hit over the past week.

The average daily illegal crossings have for years surpassed that threshold, peaking at over 8,000 last December, according to The Department of Homeland Security.
The surge driving those record-breaking crossings reflects a worldwide rise in migration over the last five years, driven by factors such as the uneven economic recovery from the pandemic and climate change, according to Colleen Putzel-Kavanaugh, an associate policy analyst at the Migration Policy Institute

Under a pandemic-era restriction, which was lifted last year, federal authorities expelled hundreds of thousands of migrants encountered at the US southern border.
When crossings exceed a daily average over the course of a week, the president will have the authority to shut down the border in between ports of entry. Once the shutdown is in effect, DHS secretary Alejandro Mayorkas can reopen the border once average crossings have fallen below 1,500 for seven consecutive days. That determination allows the border to reopen 14 days later.

There will still be a number of exceptions, including for unaccompanied children, some victims of trafficking, migrants facing acute medical emergencies or imminent threats to their safety. Migrants who also have an appointment at a port of entry via Custom and Border Protection’s smartphone app will still be processed.

People who cross the border unlawfully will be deemed ineligible for asylum absent of compelling circumstances, and they will only be referred to an asylum officer under specific circumstances. Migrants who are screened by an asylum officer will also face higher standards than what was previously used to determine fear or the intention to seek asylum. Some migrants could be removed immediately from the U.S. in a matter of hours or days. These migrants could also face a five-year ban on reentering the country, as well as potential criminal prosecution.

The actions Biden announced last week are expected to face legal challenges, just as the Trump administration did when relying on the same presidential authority to make sweeping changes to the immigration system. The president’s officials said they included “important humanitarian and legal changes” in their implementation of the authority. But they also said they’re prepared to defend the policy changes in court.
The American Civil Liberties Union announced that it would challenge the Biden administration’s policies in court, noting that the actions “take the same approach as the Trump administration’s asylum ban.”