Biden moving forward with plan to cement asylum restrictions at U.S.-Mexico border

President Biden's administration is planning to soon issue a regulation to cement the sweeping asylum restrictions it enacted at the southern border over the summer, two U.S. officials told CBS News, describing changes that would make it far less likely for the strict rules to be lifted in the near future.

In June, Mr. Biden issued a proclamation suspending the entry of most migrants crossing the U.S.-Mexico border illegally. The Department of Homeland Security and Justice Department implemented his directive by enacting a rule that has virtually shut down asylum processing between official border entry points. After the stringent measures took effect, illegal border crossings plunged to a four-year low.

The administration is planning to announce changes to the regulation as early as Monday to implement an amended proclamation, said the U.S. officials, who requested anonymity to discuss internal government plans.

The envisioned changes would make it much harder for officials to end the partial asylum ban by tweaking the threshold at which it would be deactivated. The current order stipulates that the measure would lapse if the seven-day average of daily illegal border crossings falls below 1,500. (The last time the average of daily unlawful border crossings was below 1,500 for a month was in the summer of 2020, when the pandemic depressed migration, according to federal data.) 

Under the changes, however, the asylum restrictions would only deactivate if the seven-day average stays below 1,500 for 28 days. It would also include more migrants in the deactivation trigger's calculations. Currently, crossings by non-Mexican unaccompanied children are excluded. The updated calculations would include all unaccompanied children. 

Taken together, the planned updates would likely ensure that Mr. Biden's move to severely restrict asylum will remain in place in the foreseeable future, through the election and beyond. CBS News first reported the administration was considering these changes earlier this month.

In a statement to CBS News, DHS spokesperson Naree Ketudat said the department "cannot comment on the content of a rule that is not yet final nor issued." White House spokesperson Angelo Fernández Hernández did not discuss the upcoming changes, but said Mr. Biden's "decisive" actions in June were working.

"July and August saw the lowest encounter levels since September 2020," Fernández Hernández said. "The Biden-Harris Administration has taken effective action, while Republican officials continue showing that they are more interested in cynically playing politics than securing the border." 

Lee Gelernt, the ACLU attorney leading the lawsuit against President Biden's asylum restrictions, told CBS News, "The administration is unfortunately doubling down on a patently unlawful rule that is putting people in grave danger and will hopefully be blocked by the courts in our lawsuit."  

While illegal border crossings had been dropping earlier in 2024, mostly due to the Mexican government's increased efforts to interdict U.S.-bound migrants, there was a steep drop after Mr. Biden's proclamation took effect in early June. Migrant arrivals have since plateaued in August and September.

Border politics

Immigration has been a major political headache for the Biden administration and Democrats. In 2021, 2022 and 2023, migrant encounters at the southern border soared to record levels, creating images of chaos, taxing resources in some major cities and upending the politics of immigration. Recent polls have shown growing support among Americans for stricter immigration policies, like the mass deportations promised by former President Donald Trump.

In recent months, Democrats, including Vice President Kamala Harris, have sought to alter that narrative by embracing tougher immigration measures, including a bipartisan border security deal that collapsed in Congress after Trump urged Republicans to reject it. That bill would have enacted permanent restrictions on asylum and boosted the ranks of border agents, asylum adjudicators and immigration judges.

Harris is expected to travel to Douglas, Arizona, on Friday for her first visit to the southern border since becoming the Democratic presidential nominee.

The asylum restrictions enacted in June marked a significant political and policy pivot by the Biden administration, which came into office in 2021 promising to expand access to the U.S. asylum system.

The measure, which relies on the same legal authority the Trump administration invoked to justify several immigration restrictions, means that most migrants who cross the southern border illegally are ineligible for asylum. It also ended a long-standing requirement for border agents to ask migrants if they feared being harmed before deporting them.

Biden administration officials have argued their border approach is different than the Trump administration's because they have paired their asylum limits with new programs that allow migrants to come to the U.S. legally, such as an initiative that allows Americans to sponsor citizens of four Latin American and Caribbean countries.

The administration's actions have faced scrutiny from both sides of the aisle. The American Civil Liberties Union and other migrant advocates are urging a federal court to strike down the asylum crackdown as illegal, saying it tramples on the rights of desperate asylum-seekers. Republican lawmakers, meanwhile, have said Mr. Biden took too long to use his presidential powers to clamp down on border crossings.

Theresa Cardinal Brown, a former U.S. immigration official under Presidents Barack Obama and George W. Bush, said Democrats' embrace of tighter asylum rules reflects a recognition "that there does need to be some changes to asylum at the border to make the system workable and manageable."