WASHINGTON − Even before any action is taken, progressives are pushing back as President Joe Biden considers using executive authority on the southern border to restrict migrants’ ability to seek asylum if they cross illegally.
The immediate backlash underscores the delicate line Biden must walk as he navigates the border crisis during the 2024 election.
Although no decision has been made on unilateral executive action, Biden is exploring turning to federal immigration powers also deployed by former President Donald Trump to crack down on the U.S.-Mexico border amid record migration, according to The Associated Press.
“Doing Trump impressions isn’t how we beat Trump,” Rep. Alexandria Ocasio-Cortez, D-N.Y., said in a post on X, formerly Twitter. “Seeking asylum is a legal right of all people. In the face of authoritarian threat, we should not buckle on our principles − we should commit to them.”
Ocasio-Cortez added: “The mere suggestion is outrageous and the president should refuse to sign it.”
Ahead of the 2024 presidential election, Biden has embraced tougher rhetoric on the border, going on offense on a politically fraught issue in which Democrats are historically playing defense. Biden has blamed congressional Republicans for inaction on the border after they killed legislation this month that would have created some of the most aggressive border restrictions in years.
Yet Biden’s push for stronger border enforcement risks turning off progressive voters − already upset by his unwavering support for Israel in its war against Hamas in Gaza − along with immigration advocates, and some Latino voters.
Biden is considering action under Section 212(f) of the 1952 Immigration and Nationality Act to restrict migrants’ ability to claim asylum in the U.S. if they crossed the border illegally, The New York Times reported.
Trump cited the same power in 2018 to stop accepting asylum-seekers at the border − action later blocked in the courts − and to ban the entry of people from certain Muslim-majority nations.
Amy Fischer, director of refugee and migrant rights at Amnesty International USA, questioned the legality of any executive action targeting asylum-seekers, arguing it would violate U.S. and international law establishing the right for people to seek safety in another country.
Fischer accused Biden of trying to “create so much fear, pain and suffering at the border that vulnerable communities abandon their right to seek asylum and instead succumb to the violence they are fleeing.”
Instead of choosing real solutions for the border, Fischer said, “President Biden continues to only look back into Trump’s playbook of cruelty.”
Biden could seek to use executive authority under Immigration and Nationality Act, The Times reported, to achieve one of the main policy aims of the bipartisan border legislation − what Biden called the ability to “shut down” the border when it becomes overwhelmed.
The legislation, which was killed by Senate Republicans amid resistance from Trump, would have given the Department of Homeland Security the power to shut down the border to migrants crossing illegally when daily crossings exceed a daily average of 4,000 in any one-week period.
And if migrant border encounters surpass an average of 5,000 a day − a threshold now met − DHS would have been required to close the border to migrants seeking to cross without prior authorization between ports of entry.
House Speaker Mike Johnson, who opposed the border legislation because he said it did not go far enough, has repeatedly called on Biden to use unilateral executive authority to address the border. Yet in a statement Thursday, Johnson called Biden’s consideration of executive action an “election year gimmick.”
“Americans have lost faith in this president and won’t be fooled by election year gimmicks that don’t actually secure the border,” Johnson said in a statement. “Nor will they forget that the president created this catastrophe and, until now, has refused to use his executive power to fix it.”
A Biden administration official, who spoke to USA TODAY on the condition of anonymity, stressed no final decisions have been made on what additional executive actions, if any, could be taken.
“No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected,” Angelo Fernández Hernández, assistant White House press secretary, said in a statement. “We continue to call on Speaker Johnson and House Republicans to pass the bipartisan deal to secure the border.”
Immigrant advocates fought the administration’s attempts to restrict lawful pathways for migrants in the border security legislation that failed last month. They began speaking out again this week on news the administration was considering taking executive action that could mirror the failed bill.
“The Biden administration should ensure that any border security executive action protects due process for asylum seekers and provides resources for a fair, efficient and humane asylum system,” said Kerri Talbot, executive director of the Immigration Hub, which advocates for “fair and just” immigration policies.
“An asylum ban would be misguided and illegal,” she said in a statement.
The administration would face logistical problems with any attempt to further restrict asylum.
Under U.S. law, people have the right to seek asylum between ports of entry along the southern border, even if the crossing is considered unlawful – a misdemeanor under federal law for the first entry.
Homeland Security Secretary Alejandro Mayorkas announced in May 2023, at the end of the Title 42 public-health-related expulsions, that migrants crossing between ports of entry would “be presumed ineligible for asylum and subject to steeper consequences for unlawful entry.”
But “because of the bottlenecks in the expedited removal process, that ban can’t be applied to the majority of migrants until years later in immigration court,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council, in a post on X.
“Any new ban would face the exact same issue,” Reichlin-Melnick said.
Contributing: The Associated Press
This article originally appeared on USA TODAY: Biden faces progressive backlash as he mulls executive order on border
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