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What can Biden actually do at the border?

Biden could theoretically severely restrict asylum claims and border crossings, but any measure would likely face court challenges and would probably be blocked or significantly pulled back unless it had the support of new legislation

Gustaf Kilander
Washington, DC
Tuesday 30 January 2024 23:27 GMT
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Related video: Joe Biden says ‘that’s fine’ if Donald Trump stays on 2024 ballots

President Joe Biden has been upping the stakes in the partisan fight over funding for the war effort in Ukraine and securing the southern border.

While Mr Biden wants to further arm Ukraine, Republicans are refusing to back any new funding unless they get investments in border security in exchange. Or at least those were the rough contours of a deal until former President Donald Trump chose to enter the fray.

The ex-president and frontrunner for his third GOP nomination in a row came out against any deal in any shape or form, seemingly unwilling to hand his likely opponent a political win and yet another bipartisan deal, pulling many congressional Republicans along with him and making a deal a lot less likely.

Mr Trump said on Saturday: “I’ll fight it all the way. A lot of the senators are trying to say, respectfully, they’re blaming it on me. I say that’s okay. Please blame it on me. Please.”

“A bipartisan bill would be good for America and help fix our broken immigration system and allow speedy access for those who deserve to be here, and Congress needs to get it done,” Mr Biden said at the weekend, according to the AP. “It’ll also give me as president, the emergency authority to shut down the border until it could get back under control. If that bill were the law today, I’d shut down the border right now and fix it quickly.”

Mr Biden’s new tough rhetoric comes as he tries to push back on right-wing criticism regarding his handling of immigration.

House Speaker Mike Johnson, who has said that any deal similar to what has so far been reported would be “dead on arrival” in the lower chamber, wrote on X that Mr Biden “said ‘I’ve done all I can do’ with executive authority to secure the border. That is simply untrue. He’s either lying or misinformed”.

Mr Johnson also mentioned the presidential authority to restrict entry, expedited removal, discretionary detention authority, and mandatory detention.

The authority to restrict entry gives the president the power to suspend or restrict the entry of immigrants for as long as he would think was needed with the motivation that the commander in chief would think that such entries would be negative for US interests.

Expedited removal allows US Customs and Border Protection (CBP) to quickly deport undocumented non-citizens who have committed fraud or misrepresentation.

Regarding discretionary detention, the ACLU Analytics and Immigrants’ Rights Project stated in 2018 that “since 2016, 9,188 people have been locked up in our immigration system for over 30 days despite having been granted bond, most often because they could not afford to pay it … most of them are immigrants seeking asylum. They are not convicted of crimes or subject to immediate deportation – in these cases, ICE had a choice, and it chose to imprison them”.

“Mandatory detention refers to a provision of the INA that states that non-citizens with certain criminal convictions must be detained by ICE. People who are subject to mandatory detention are not entitled to a bond hearing and must remain in detention while removal proceedings are pending against them,” according to the Immigrant Legal Resource Center.

Mr Biden could theoretically severely restrict asylum claims and border crossings, but any measure would likely face court challenges and would probably be blocked or significantly pulled back unless it had the support of new legislation, something which would have to be passed by Congress.

White House Press Secretary Karine Jean-Pierre has said that “Congress needs to act. They must act. Speaker Johnson and House Republicans should provide the administration with the policy changes and funding needed”.

Even if a deal on the border made its way through Congress, which now appears unlikely, citizens and legal residents would continue to be able to cross the border, and trade would not be shut down.

When Mr Biden said he would “shut down” the border, he was referencing an expulsion authority which is part of the current negotiations on a possible deal which would automatically be activated on certain days when illegal crossings passed more than 5,000 a day across a five-day average. The southern border is currently seeing as many as 10,000 crossings each day, the AP notes.

That authority would close down asylum screenings for any migrants crossing unlawfully. Migrants would still be able to apply for asylum at ports of entry until crossings go below 3,750 under the proposed deal, which is still being negotiated.

The Biden administration has so far attempted to combine humanitarian pathways for migrants with new restrictions at the border to urge migrants not to make the trip to the border on foot and to instead fly with a sponsor.

Mr Biden signed more executive orders than Mr Trump on his first day in office – he also sent an immigration proposal to Congress. According to the nonpartisan Migration Policy Institute, Mr Biden has since put in place more than 500 executive measures.

While some policies have succeeded, crossings have still increased. Mr Biden has also struck agreements with other countries in the region. Mr Biden and his allies view the changes to the asylum rules as part of the crackdown in their immigration strategy, but they have pushed back against the idea of ending the president’s ability to grant “humanitarian parole” – that is to allow people into the country in emergencies.

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