President Biden to Sign Executive Order Temporarily Shutting Down Southern Border

WASHINGTON — President Joe Biden is expected to sign an executive action on Tuesday that would temporarily shut down the southern border when daily migrant crossings between legal ports of entry exceed 2,500, with the border reopening when the number falls below 1,500, according to three people familiar with the discussions.

The White House has conveyed this threshold to lawmakers, two of the sources said, but stressed some details were still being finalized before Tuesday’s anticipated rollout.

Current Border Situation

Daily encounters at the U.S.-Mexico border are currently averaging more than 4,000, according to Department of Homeland Security officials. This suggests that a shutdown could go into effect immediately, though administration officials are bracing for legal challenges.

The executive order was first reported by NBC News on May 23. A critical consideration in crafting the order was working with the administration of Mexican President Andrés Manuel López Obrador to secure cooperation on key provisions, according to multiple officials familiar with the negotiations. On Sunday, Claudia Sheinbaum, supported by López Obrador, won election to succeed him as president.

Legal and Logistical Details

The executive action is expected to rely on a presidential authority in the U.S. Code known as Section 212(f), which allows the president to unilaterally “suspend the entry” of specific groups of migrants whenever the number of attempted border crossings grows too high.

A shutdown would not block trade, travel, or entry by immigrants presenting themselves lawfully for asylum at ports of entry. However, it would prevent migrants from applying for asylum if they crossed the border between ports of entry during the shutdown.

To avoid legal pitfalls encountered during the Trump administration, the Biden administration has carved out exceptions for unaccompanied children and victims of trafficking, according to one of the sources.

Temporary Protected Status for Haitians

DHS is also expected to redesignate Temporary Protected Status (TPS) for Haiti, allowing certain Haitian nationals in the U.S. to remain until conditions in Haiti improve, three sources said. Haiti has been largely controlled by armed gangs since March, prompting many lawmakers on Capitol Hill to urge the Biden administration to extend TPS to Haitians and halt deportations.

In recent days, the White House has reached out to mayors of border cities to attend the signing of the executive order, according to a source familiar with the matter.

Political Context

Border politics have been a contentious issue for months, with efforts by Senate Democrats in May to advance a bipartisan border security bill stalling. In February, senators released details of a bipartisan agreement that would have imposed tougher immigration and asylum laws and allowed Biden to shut down the border when overwhelmed. However, just days later, Republican senators killed the bill their own party had negotiated with Democrats.

Polling indicates that border security is a weak spot for Biden. Former President Donald Trump holds a 30-point edge with registered voters on the question of which candidate would handle immigration and border security better, including a 23-point edge among Latino voters, according to a late March CNBC national poll.

Trump has vowed to launch the biggest “domestic deportation operation” in his second term if re-elected. During his administration, Trump made it harder for foreign-born workers to enter the U.S., with visa denials rising by over 20% in both fiscal year 2018 and 2019, and refugee admissions decreasing.

Current Border Statistics

There were 179,725 encounters along the southern border in April, a slight decrease from recent months, according to U.S. Customs and Border Protection. Over 1.5 million encounters have been recorded this fiscal year to date, meaning fiscal year 2024 has so far outpaced fiscal years 2023, 2022, and 2021 in encounters, according to the data.

One of the sources said the administration is bracing for attempted crossings to rise again this summer, prompting the decision to act now.

Anticipated Impact and Reactions

The executive order is anticipated to trigger immediate and significant changes at the southern border. Border communities are likely to experience disruptions, and the order could face numerous legal challenges from immigrant advocacy groups and civil rights organizations.

The administration's decision reflects a balancing act between addressing the surge in migrant crossings and adhering to legal and humanitarian standards. As the policy goes into effect, it will be closely monitored by both supporters and critics, each keen to assess its impact on immigration patterns and border security.

Broader Implications

The move underscores the ongoing complexity of U.S. immigration policy, particularly as the country grapples with fluctuating migration trends and the political ramifications of border security measures. It highlights the challenges faced by the Biden administration in managing a critical aspect of national policy that remains deeply divisive and contentious.

As President Biden prepares to sign this executive action, the broader implications for U.S.-Mexico relations, domestic political dynamics, and the humanitarian aspects of immigration enforcement will come into sharper focus, setting the stage for continued debate and policy adjustments in the months ahead.