On June 4, 2024, President Joe Biden released a presidential proclamation placing significant limits on asylum seekers in an attempt to “shut down” the U.S.’s southern border when encounters reach specified thresholds. The proclamation, when paired with a new interim final rule, will give officials the authority to quickly deport migrants and bar them from returning to the United States for at least five years, while greatly curtailing their access to protection.
This policy shift follows several other recent reforms to more quickly move some migrants through the immigration courts, apply eligibility bars to protection earlier in the process, and surge resources for increased immigration-related criminal prosecutions. Taken together, these steps represent a more enforcement-focused approach to addressing challenges at the border.
This Q&A describes the proclamation and its impact, with an eye toward its legality and its effect on vulnerable populations.
Q: What does the border proclamation do?
A: The presidential proclamation suspends the entry of migrants and asylum seekers at the U.S.’s southern border any time the average daily number of migrant encounters in a week reaches 2,500 or more, with a handful of exceptions. It applies to those attempting to enter the United States between ports of entry, as well as – apparently – those seeking to present themselves at official ports of entry, if they do not have an appointment through the federal government’s CBP One phone app or otherwise fall into an exempt category.
To end the suspension and restore normal operations at the border, the average daily migrant encounters must drop to fewer than 1,500 for seven days, then remain below a seven-day daily average of 2,500 for another 14 days before being lifted. Over the past 24 years, the Border Patrol has apprehended a daily average of more than 2,500 migrants over one-third of the time (37%). During that same period, the daily average of migrant encounters has been over 1,500 a majority of the time (58%). These historical numbers suggest that once the suspension and limitation on entry are triggered, they may remain in place for extended periods.
Q: What legal authority is the Biden administration using to justify this policy?
The Biden administration is relying on Sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) to justify the proclamation’s restrictions.
Section 212(f) of the INA states, in part:
Whenever the President finds that the entry of any [noncitizens] or of any class of [noncitizens] into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all [noncitizens] or any class of [noncitizens] as immigrants or nonimmigrants, or impose on the entry of [noncitizens] any restrictions he may deem to be appropriate.
This section of immigration law has been used in various contexts, usually with a limited scope. However, it garnered attention under the Trump administration when officials deployed the authority to suspend the entry of noncitizens from primarily Muslim-majority countries in early 2017.
Parallelling the Biden administration’s presidential proclamation, the Trump administration also tried to rely on Sec. 212(f) in November 2018 to curtail access to asylum between ports of entry, but that effort was later found to be inconsistent with 8 U.S.C. § 1158, the federal statute governing asylum, and struck down in federal court.
Section 215(a) of the INA similarly places prohibitions around travel and entry of noncitizens and citizens alike, and grants the president authority to impose restrictions on noncitizens’ entry into and departure from the United States. Notably, during the Iran Hostage Crisis, President Jimmy Carter utilized Sec. 215(a) to revoke immigrant and nonimmigrant visas issued to Iranian nationals.
Q: When does the suspension and limitation on entry go into effect?
A: The suspension took effect shortly after the issuance of the proclamation, at 12:01 a.m. EDT on June 5, 2024.
Q: Are there any exceptions to the suspension and limitation on entry?
A: Yes. Unaccompanied children and survivors of a severe form of human trafficking will not have the suspension applied to them, and there are other exemptions around operational considerations or people who warrant entry based on significant law enforcement, officer and public safety, urgent humanitarian, and public health considerations. U.S. nationals and lawful permanent residents are also exempt, as well as people with valid visas, those subject to the visa waiver program, and others with permission and documentation to enter.
The proclamation exempts those who arrive “pursuant to a process the Secretary of Homeland Security determines is appropriate to allow for the safe and orderly entry of noncitizens into the United States.” This includes those able to access one of the federal government’s 1,450 daily appointments via its CBP One app.
While previous restrictions from the Trump and Biden administrations have focused on irregular migration between ports of entry, notably, the suspension in the proclamation also appears to implicate asylum seekers who present themselves for protection claims at official ports of entry, if they do not fall into an exemption (such as having a CBP One appointment).
Q: Will these limitations on entry be implemented against everyone who crosses the U.S.’s southern border?
A: It remains to be seen. Barring a dramatic and immediate decline in those coming to the U.S. Mexico border (or an unexpected influx of funding from Congress), the Biden administration is likely to face challenges implementing this proclamation universally. To suspend entries across the board, the federal government would need far more resources and personnel.
Even after placing significant limits on asylum access, the Biden administration will need to screen people who affirmatively manifest a fear of persecution or torture, or who ask for protection. Those initial screenings can take hours, and in the year since the end of the Title 42 public health order, asylum officers have conducted around 152,000 of these interviews. With just under 129,000 migrant encounters between ports of entry in April 2024 alone, if even a fraction of those encounters involve affirmative requests for protection, asylum officers may struggle with implementation.
Similarly, the Biden administration may have difficulties deporting or returning migrants and asylum seekers. The Department of Homeland Security (DHS) reports it has removed over 740,000 people in the last year — the largest annual number since 2010. Even so, repatriations lag far behind the pace of migrants entering the country.
Absent an influx of funding from Congress – which is unlikely to materialize this year – the Biden administration is going to face challenges with existing infrastructure, resources, and personnel to carry out these actions universally across the entire U.S.-Mexico border and the U.S.’s southern maritime borders.
Q: For those affected by the proclamation, what will the impact be?
A: Those with potentially valid claims for asylum or other forms of humanitarian relief could find themselves forced to wait in Mexico, sent back to dangerous situations, or facing other negative consequences. Immigration-related nonprofits have documented an ongoing and worsening trend of migrants and asylum seekers experiencing violence or exploitation by cartels and other bad actors.
Q: Will the proclamation survive legal challenges?
A: Unclear. The proclamation and its affiliated interim final rule are likely to be challenged; already, the ACLU has said its attorneys will file suit, and these actions may be enjoined by a federal court.
Critics of the policy will argue that the proclamation and interim final rule directly contradict the INA. They will be able to cite existing precedents barring the Trump administration from similarly restricting asylum.
Q: How does the proclamation interact with other recent asylum announcements from the administration?
A: In recent weeks, the Biden administration has proposed or debuted a number of new policies involving asylum and other immigration-related topics. On May 9, 2024, DHS announced a proposed rule that would give asylum officers the discretion to make decisions on protection eligibility bars involving public safety and national security concerns during initial screenings. U.S. Citizenship and Immigration Services (USCIS) also issued revised guidance to its asylum officers, instructing them to make complex decisions about whether someone could have safely relocated inside their home country instead of crossing international borders earlier in the adjudicatory process.
Then, on May 16, DHS and the Department of Justice (DOJ) announced a new “recent arrivals” docket for single adults who try to cross the U.S.-Mexico border without authorization, cutting timelines for immigration proceedings from years to roughly six months. Subsequently, DOJ also announced expanded efforts to prosecute smugglers, by starting an Anti-Smuggling Rewards initiative, sending additional personnel for immigration-related prosecutions to border U.S. Attorneys’ Offices, and proposing changes to U.S. sentencing guidelines that would enhance penalties against certain human smugglers.