How will Biden’s new restrictions affect asylum seekers at US border?

United States President Joe Biden has unveiled a sweeping executive order restricting asylum claims, expanding controversial efforts to curb the surging number of people crossing the country’s southern border.

That order went into effect on Wednesday. It comes as Biden is expected to face a reckoning on immigration issues in November’s presidential election, where he is set to face Republican challenger and former President Donald Trump.

Biden, who entered office pledging to reverse Trump’s hardline border policies, has said the new order is essential to rebooting the US asylum system.

It gives his administration the authority to stop processing asylum claims if the number of irregular crossings at the US-Mexico border surpasses an average of 2,500 per day for a week.

But migrant rights groups have roundly condemned the president’s proclamation, with the American Civil Liberties Union (ACLU) saying the order will stifle the legal right to claim asylum, thus “putting tens of thousands of lives at risk”.

Here’s what to know about the latest restrictions.

What is asylum?

Asylum is a principle under international law that allows individuals to seek protection when fleeing from war, persecution and human rights violations in their home countries.

Under US immigration law, any non-citizens on US soil must be granted due process to seek asylum if they fear for their lives or freedom “on account of race, religion, nationality, membership in a particular social group or political opinion”.

Why is Biden seeking to restrict asylum?

Because of the often life-or-death stakes, the law allows persecuted individuals to apply for asylum in the US regardless of how they arrived in the country. That includes crossing the border irregularly.

But critics, including the Biden administration, have said the existing system — and its massive backlog — offer an incentive for those who are not eligible to cross the border and file an application anyway.

That, in theory, allows them to stay in the country while their application is reviewed, a process that can take months if not years in some cases. They cannot be removed if there is a significant chance they could be eligible.

Migrant rights groups, however, have said that any move to block individuals from seeking asylum falls short of the US government’s legal and moral obligations.

They also warn that barriers to making asylum claims could force applicants to return to life-threatening situations — or leave them vulnerable to exploitation by criminal gangs along the border.

What does the new order do?

Biden’s executive order puts a cap on the number of asylum seekers who can enter the US via the southern border in a given time period.

The ability to apply for asylum after irregularly crossing the border will be largely suspended when detainments at and near the border exceed a daily average of 2,500 across the span of a week.

That pause will continue until the secretary of the US Department of Homeland Security “makes a factual determination” that those numbers have fallen to an average of 1,500 daily encounters over a period of a week.

Then, 14 days afterwards, the normal asylum processes will resume.

Are there exceptions?

Under the executive order, there are several exceptions to the suspension of asylum-related entries.

Individuals crossing the border who express fear of persecution if they are returned to their home countries will still be screened by asylum officers — but in an expedited process with a higher standard than those currently in place.

Individuals deemed “particularly vulnerable” could still be allowed to stay in the US to seek other forms of humanitarian protection, according to the White House.

The order exempts unaccompanied minors and human-trafficking victims, as well as those who have appointments to make an asylum claim via the CBP One app.

When does the order go into effect?

The order went into effect at the start of June 5. However, the real effects on the ground will be contingent on the number of crossings in the coming days and weeks.

The pause would go into effect as soon as the Department of Homeland Security determines there have been seven consecutive days exceeding the 2,500 encounter limit.

Daily encounters on the southern land border in May hovered around 3,700 a day, according to numbers obtained by CBS News. As the Associated Press news agency reported, the last time the number of encounters dipped below 2,500 was in January 2021.

At the current rate, restrictions could go into effect by next week.

What does this mean for migrants and asylum seekers?

Biden’s proclamation could have several knock-on effects, according to rights groups.

Most pressingly, they warn the executive order risks denying asylum to those who actually need it.

Rights groups have also expressed concerns that such restrictions encourage migrants and asylum seekers to take more dangerous routes into the country, in order to avoid border authorities.

The move is also set to further delay scheduling for asylum appointments through the CBP One app, which can leave people waiting in dangerous conditions across the border in Mexico.

How might removals happen?

In May of last year, the Biden administration ended its use of Title 42, a measure enacted during the COVID-19 pandemic to give officials the permission to eject — but not formally deport — people detained at the border without allowing them to seek asylum first.

Those ejected could attempt to seek asylum in the US at a future date.

Since then, officials have relied on Title 8, part of the US code governing immigration and nationality that includes formal deportation procedures.

Under that authority, deported migrants and asylum seekers could face a ban on re-entering the US for five years, according to the Department of Homeland Security. Attempting to return after deportation could also result in criminal penalties.

Migration advocates fear those penalties await people who cross irregularly during the new asylum suspensions. Homeland Security has indicated those who do not meet the “credible fear” standards used to evaluate asylum claims will be actively removed.

Why are restrictions being compared to those imposed under Trump?

Biden’s executive order relies on the same law used by former President Trump in some of his most controversial immigration policies: Section 212(f) of the 1952 Immigration and Nationality Act.

The provision allows the president to “suspend the entry of all aliens or any class of aliens” when it is determined their arrival “would be detrimental to the interests of the United States”.

It also permits the president to impose “any restrictions he may deem to be appropriate” to limit entry to those groups.

Trump cited the law as justification for a 2018 policy that effectively banned people who irregularly crossed the southern border from seeking asylum. A federal judge later blocked the policy.

In 2017, Trump also relied on the law to implement what critics called a “Muslim ban”, blocking travellers and refugees from seven predominantly Muslim countries from entering the US.

What questions remain?

Most significantly, it remains unclear what will happen to migrants and asylum seekers who arrive irregularly in the US when a suspension is in place under the new policy.

Several administration officials told the Associated Press there was not adequate funding for an increase in deportations.

The US currently has an agreement with Mexico to accept up to 30,000 citizens a month from Cuba, Haiti, Nicaragua and Venezuela denied entry to the US.

But expulsions and deportations to Mexico could exceed that amount, and how authorities plan to deal with nationals from other countries remains unknown.

Will the new restrictions stand?

Lawyers for the ACLU have already vowed to challenge Biden’s policy in court, as they did with similar policies enacted under Trump.

In a post on the social media platform X, the organisation said Biden’s executive action “takes the same approach as the Trump administration’s asylum ban”, which it successfully blocked.

What has the reaction in Washington been?

Given the legally precarious nature of the policy, even those who have called for more restrictions at the border, including Republican Speaker of the House Mike Johnson, have dismissed Biden’s effort as an empty political manoeuvre ahead of the 2024 presidential election.

“It’s window dressing,” Johnson said on Tuesday. “Everyone knows that, if he was concerned about the border, he would have done this a long time ago.”

Biden, however, has blamed Republicans in Congress for failing to pass “meaningful policy reforms”, thereby forcing his hand.

Efforts to pass an immigration bill that would have likewise overhauled the asylum system stalled in February and again in May, with Republicans in the House of Representatives warning it would be “dead on arrival” in their chamber.