Understanding the Functioning of Biden’s Asylum Order

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TL/DR –

President Biden has issued an executive order to block asylum at the southern border to discourage illegal crossings. The order will suspend the entry of migrants crossing the border illegally, but will be lifted if the government verifies that fewer than 1,500 people per day on average cross the border in a week—however, it will be reinstated if numbers rise above 2,500 daily in a given week. Migrants who claim fear of returning to their home country can still ask for protection, but will now have to make this claim without being prompted, in a practice known as the “shout test”, and use programs other than asylum that have a higher bar and for which most people will not qualify.


President Biden issued an executive order significantly altering US asylum procedure. The move aims to curb illegal border crossings, a key issue in the upcoming November presidential election.

What does Biden’s executive order state?

The order blocks illegal migrants from the southern border and will be effective from 12:01 a.m. Wednesday unless legal obstacles arise. The order will be revoked if less than 1,500 people per day cross the border on average in a week but can be reinstated if the average daily crossings exceed 2,500 in a week.

On Monday, approximately 3,500 unauthorized crossings occurred which suggests a significant reduction is needed for the suspension to end. Despite a recent decrease in crossings, the numbers continue to surpass the government’s capacity. Biden’s order called on Congress to revise immigration laws due to the current system’s incapacity to meet current needs.

What if a migrant still crosses the border and asks for asylum?

Previously, detained migrants were asked if they feared harm in their home country. Many were allowed to stay while awaiting an asylum hearing. Now, more migrants may be turned back. Migrants fearing harm can still ask for protection but must declare their fear without being asked, a process known as the “shout test”. They must also utilize programs other than asylum which have stricter criteria.

Immigration advocates argue that these changes essentially suspend the asylum system. The US will rely on Mexico to immediately take back its nationals, with transportation arranged for migrants from other countries. Detainment will be used where possible, but resources may be stretched if crossings surge.

Could courts block Biden’s executive order?

The American Civil Liberties Union has announced it will sue to stop the measure. It remains unclear how this would unfold. A San Francisco federal court previously halted the Trump administration’s asylum restrictions in 2018. The Supreme Court allowed the judge’s order to remain. The same judge, Jon S. Tigar, also blocked other Biden asylum restrictions last year.

Are there exceptions to the order?

Yes. The asylum restrictions do not apply to unaccompanied immigrant children, human trafficking victims, visa holders, or those facing serious medical emergencies or life threats, according to the Department of Homeland Security.

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