President Biden on Tuesday introduced executive actions to limit asylum claims at the southern border, but emerging details of the move show that the block contains significant exceptions that critics say you can “drive a truck through.”
“Today, I’m moving past Republican obstruction and using executive authorities available to me as president to do what I can on my own to address the border,” Biden said in a speech on Tuesday afternoon.
The presidential proclamation will temporarily suspend the entry of migrants across the southern border once the number of average border encounters exceeds 2,500 a day over seven days, officials said.
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Migrants at the front of the line are processed for entry by U.S. Customs and Border Protection. (Jon Michael Raasch/Fox News Digital)
That will stay in effect until 14 days after there has been a seven-day average of less than 1,500 encounters along the border. It is accompanied by an interim final rule from the departments of Homeland Security and Justice. That rule will also apply a higher standard migrants must meet for initial asylum screenings. The move brought criticism from Democrats as well as Republicans and a threat of a lawsuit from the American Civil Liberties Union (ACLU).
However, the rule comes with a series of significant exceptions. In addition to not applying to legal immigrants, it also does not apply to unaccompanied children or to those judged to be “victims of severe forms of trafficking.” It also doesn’t apply to those who schedule an appointment on the CBP One app at a port of entry, where about 1,500 enter each day. There is also an exception for those who are allowed to enter “based on the totality of the circumstances,” which includes urgent humanitarian or law enforcement considerations.
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Finally, it allows for the entry of noncitizens “due to operational considerations that warrant permitting the noncitizen to enter.”
Those exceptions sparked additional concern from Republicans, who were already sour on the order and believed it was too little too late.
President Biden walks off after speaking about an executive order at the White House on June 4, 2024. (AP Photo/Manuel Balce Ceneta)
“The exceptions to Biden’s new EO are broad enough to drive a truck through,” Republicans on the House Homeland Security Committee said on X, formerly known as Twitter.
“So, the message to the cartels and the smugglers is you have the greenest of green lights to smuggle trafficked children into this country, into various forms of servitude, slavery, sex trafficking, labor trafficking, other forms of abuse, imprisonment and torture,” former senior Trump White House official Stephen Miller said in response to the exception for unaccompanied minors.
DHS Secretary Alejandro Mayorkas challenged that assertion on “Your World” when he was asked by Neil Cavuto if this was a green light for smugglers. He called the cartels “unscrupulous.”
“They exploit individuals of all different types of vulnerabilities. We are taking it to the cartels. We exempted unaccompanied children from this asylum bar because of the compelling humanitarian picture they present,” he said.
The Biden administration has also embraced those exceptions as a way in which the order differs from the Trump-era use of the authority used by Biden.
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“The action will not ban people based on their religion. It will not separate kids from their mothers. There are also narrow humanitarian exceptions to the bar on asylum, including for those facing an acute medical emergency or an imminent extreme threat to life or safety. And the Trump administration’s actions did not include these exceptions,” a senior administration official told reporters on Tuesday.
Meanwhile, the action tightens policy for when officials seek to remove an illegal immigrant quickly under “expedited removal.” They previously asked each migrant if they feared persecution in their home country, and if they said yes, they would be given a “credible fear” screening. Now agents will no longer ask individually but will provide general notice to migrants and be on the lookout for verbal and nonverbal signs that someone may be fearful of being deported.
Behaviors officials are told to look out for include explicit statements expressing fear from migrants but can also self-harm and “non-verbal actions,” including hysteria, shaking, unusual behavior, “incoherent” speech patterns and an “unusual level of silence.” The guidance says that if an agent determines that a migrant is showing such a fear, they must first provide them with information and refer them to an asylum officer.
As a result, signs will be posted in detention centers that say: “If you are hungry or thirsty, need medical care, fear persecution or torture if removed from the United States, have been a victim of abuse, have been a victim of a sexual assault, have witnessed a crime, tell an Officer. Your claim will be heard. You may be referred to a medical professional, an asylum officer, or other law enforcement professional.”
Translations will be made available in Arabic, Bengali, French, Haitian Creole, Hindi, K’iche’/Kxlantzij, Portuguese, Punjabi, Romanian, Russian, Simplified Chinese, Turkish, and Vietnamese. The guidance also says that a video explaining the circumstances should be played every two hours on a daily basis.
Conservative critics said the guidance shows that, despite the rollout, little will change.
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“The guidance basically spells out that if an illegal alien claims fear they have to be referred to the USCIS (U.S. Citizenship and Immigration Services) rubber stamp without question, which means nothing really changes, except CBP (U.S. Customs and Border Protection
and ICE doesn’t ask them out the gate if they are scared to return home,” RJ Hauman, president of the National Immigration Center for Enforcement (NICE) and a visiting fellow at the Heritage Foundation told Fox News Digital. “Traffickers and cartels are sure to quickly adapt to this political gimmick. They will immediately instruct everyone to claim fear immediately upon arrest instead of waiting to be asked.”