The Biden administration is exploring options it can take unilaterally to restrict immigration at the southern border further while also examining ways to improve lawful pathways for entrance, an administration source has told Scripps News.
Under consideration for the enforcement arm would be further restricting migrants’ ability to claim credible fear when entering the country between ports of entry and raising the standard for claiming asylum.
The administration is also exploring ways to alleviate the number of individuals arriving through ports by expanding lawful entry via expanded parole programs, the source confirms. All of the options being discussed are still in the planning phase, with no immediate plans for implementation or rollout.
Barring asylum entirely is not under consideration, Scripps News has learned. Immigration experts say the Supreme Court already rejected a ban on asylum seekers in 2018 when then-President Donald Trump attempted to ban all asylum claims between ports of entry.
Immigration law states that asylum can be claimed “irrespective of such alien’s status,” or how they entered the country.
The Biden administration is weighing its options after House Republicans have rejected calls for a bipartisan border security agreement.
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The plans being explored would also utilize different mechanisms outside of simply an executive order — such as a change to rulemaking, which often takes months to implement once announced, given the need for a public comment period.
In early February, White House press secretary Karine Jean-Pierre indicated the administration was exploring unilateral options to address immigration.
“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide that Republicans have rejected. In order to actually deal with this, we need them to legislate,” she said at the Feb. 8 briefing. “We are always evaluating our options. But no executive action could actually have done what this bipartisan agreement could have done and would have been able to put into place to deal with the challenges at the border and to actually deal with immigration.”
Last year, the administration increased the threshold for claiming asylum at the U.S.-Mexico border via a rule change following the end of Title 42 public health emergency.
That change required all migrants who cross between ports of entry to be “presumed ineligible for asylum” unless they can rebut the presumption of ineligibility or fall into an exemption, such as a medical emergency, or were denied asylum in a third country en route to the U.S.
According to the Department of Homeland Security, unaccompanied children were exempt from the presumption.
A new rule could provide for fewer exemptions, but an administration source highlighted they would still need to screen people for both statutory and treaty law, a process that requires more people to execute effectively.
“Congressional Republicans chose to put partisan politics ahead of our national security, rejected what border agents have said they need, and then gave themselves a two-week vacation,” White House spokesperson Angelo Fernández Hernández said in a statement.
The lawful pathways under consideration could mimic ones parole processes used previously for Cubans, Haitians and Nicaraguans, the source said.
That program requires the individual to have a U.S.-based financial supporter, pass vetting and background checks, and meet other established criteria, and may be eligible to come to the United States for two years and receive work authorization.
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