Biden mulls plan that could limit asylum claims at border

President Biden is considering executive actions that could prevent people who enter the United States illegally from seeking asylum, several people with knowledge of the proposal said Wednesday. The move would suspend longstanding guarantees that give anyone entering U.S. territory the right to request safe haven.

The order would implement a key policy in a bipartisan bill that Republicans defeated earlier this month, even though it contained some of the most significant border security restrictions Congress has considered in years.

The bill would have essentially closed the border to new arrivals if an average of more than 5,000 migrants attempted to cross unlawfully per day over the course of a week, or more than 8,500 attempted to cross on any given day.

The action being considered by the White House would have a similar trigger for blocking asylum for new arrivals, say the people with knowledge of the proposal. They spoke on condition of anonymity to discuss internal deliberations.

If implemented, the move would echo a 2018 attempt by President Donald J. Trump to block migration, which was attacked by Democrats and blocked by federal courts.

While such a move would undoubtedly come with legal challenges, the fact that Biden is considering it shows how far he has shifted on immigration since taking office, promising a more humane system after the Trump years.

Mr Biden has taken a much tougher stance as the number of people crossing the US-Mexico border has reached record levels and the chronically underfunded and understaffed asylum system is reaching a breaking point.

But even if Biden were to try to take unilateral action to reduce the number of people seeking asylum, a lack of resources would still be a huge obstacle to major changes at the border. U.S. officials have said they need a huge amount of money to hire Border Patrol agents and asylum officers and expand detention facilities.

A White House official, speaking on condition of anonymity to discuss the plans under discussion, said no decisions had been made.

But the people with knowledge of the proposal said Mr. Biden could invoke his authority to act under Section 212(f) of the Immigration and Nationality Act of 1952, which allows the president to suspend immigration for anyone determined to be “detrimental to the interests of the United States.” Mr. Trump used the same authority to impose bans on people from several predominantly Muslim countries during his presidency.

Lee Gelernt, a lawyer with the American Civil Liberties Union who helped oppose Trump's efforts, said his group would challenge such a policy.

“The courts emphasized that the Trump administration could not deny asylum solely based on how someone entered the country,” Mr. Gelernt said. “Hopefully the Biden administration will not consider recycling this patently illegal and unworkable policy.”

But a legal fight, regardless of the outcome, could allow Mr. Biden to neutralize one of his biggest political vulnerabilities: the chaos at the southern border. Republicans have repeatedly used the border crisis to portray Mr. Biden as weak on enforcement. A legal battle would allow him to highlight Republicans' refusal to give him the power to crack down on the border through legislation.

The Biden administration has tried for years to curb migration, in part by limiting asylum for those crossing Mexico en route to the United States. That policy made it more difficult for migrants to obtain asylum if they crossed a third country on their way to the United States and did not apply for protection there.

But while the policy restriction raised the bar for migrants to gain asylum, U.S. officials cannot properly implement it without the kind of resources Biden had hoped Congress would approve. The failed bill would have provided billions in funding, including hiring thousands of asylum officers to process claims.

Some conditions at the southern border are far beyond the president's control, including historic migration across the hemisphere from Venezuela, Haiti, Honduras and other countries experiencing instability, violence and natural disasters.

But Biden is under pressure from both parties, not just the usual Republican critics, to do something. And the crisis doesn't stop at the border itself: Texas Governor Greg Abbott has sent busloads of migrants to Democratic cities far north, saying he wanted to “bring the border to President Biden.”

Cities became overwhelmed as migrants – often without coats, or family members in the United States – arrived. Leaders in the president's own party began issuing cries for help.

That push has upended immigration politics in an election year, giving Mr. Biden much more room to back border measures once denounced by Democrats and championed by Mr. Trump.

Mr. Biden has directly blamed Mr. Trump for using his influence with the Republican Party to end the same bipartisan immigration deal that Republicans have been calling for for years.

Biden predicted in a speech earlier this month that Republicans would take action to block the bill. “Why? A simple reason,” he said. “Donald Trump. Because Donald Trump thinks this is bad for him politically.”

Jonathan Swan contributed reporting from Washington.