President Joe Biden has ordered a temporary suspension of asylum applications for migrants who cross the southern border illegally between ports of entry.

This suspension went into effect at midnight on June 5 because the number of illegal border crossings (or encounters) has reached the order’s threshold of 2,500 per day. If illegal encounters drop to 1,500 or fewer for 14 days, the suspension will be lifted; but it will be reinstated if the 2,500 threshold is breached again. The president stated that he took this action in response to Congress’ inability to pass the necessary legislation to remedy the border problem. He noted, “Doing nothing was not an option. We [had] to act.”

The order also calls for the quick deportation of illegal crossers to their home countries. The assumption is that if individuals understand they will not be able to remain in the United States to await asylum hearings, they will not make the arduous and often expensive trip to the border. The order will act as a deterrent to illegal immigration.

There are humanitarian exceptions to the order for unaccompanied minors and those who have been subjected to severe forms of trafficking. Those who have valid visas or other forms of lawful residence in the United States are also not covered by the order.

The authority for President Biden’s order is INA Section 212(f), the same section  that former President Donald Trump had relied on in promulgating rules attempting to control asylum applications at the border. Those rules were enjoined. The Biden Administration, however, noted that its order is very different from Trump’s bans for a number of reasons, including its humanitarian exceptions. Nevertheless, immigrant advocates have already said they are challenging the new order in court.

Migrants who do not cross the border illegally between ports of entry will still be able to use the CBP One app to make appointments to claim asylum. They will also be able to use the various other pathways, such as parole policies that have been created for citizens or nationals from countries that include Cuba, Haiti, Nicaragua, and Venezuela.

The Department of Homeland Security (DHS) has surged agents to the border and launched a Recent Arrivals docket to resolve cases more quickly for migrants seeking asylum. Absent additional funding from Congress, it is not clear how well this will work. Moreover, it is not clear whether this “surging” will affect other DHS backlogs.

Jackson Lewis attorneys are available to answer any questions you may have about the new executive order and its effects.