President Biden signed an executive order that will temporarily shut down asylum requests once the average number of daily encounters tops 2,500 between official ports of entry. The order relies on Immigration and Nationality Act sections 212(f) and 215(a) suspending entry of noncitizens who cross the southern border into the United States unlawfully.
What changed
The shutdown went into effect immediately since the threshold had already been met, and the border would reopen only once that number falls to 1,500. The executive action includes some exceptions, including for unaccompanied children.
The proclamation bars individuals who cross the southern border unlawfully from receiving asylum protection, effectively creating a blanket bar on asylum eligibility once the encounter threshold is reached. The administration also noted it has opened lawful pathways including the CBP One mobile application for appointments at ports of entry, family reunification programs, and parole processes for nationals from specific countries.
Why it matters
The Biden administration expects to defend the executive action against legal challenges. Practitioners should understand the critical distinction between unlawful border crossings and authorized ports of entry: individuals who present at official ports of entry may still have asylum access under this order, while those apprehended between ports of entry are barred.
The 2,500-per-day threshold mechanism means asylum eligibility can shift rapidly depending on border encounter statistics. You’ll need to track current CBP encounter data to advise clients on whether the bar is in effect. The order also creates potential strategic advantages for clients using the CBP One app or other lawful pathways rather than unauthorized crossing.
In 2018, the Trump administration tried to enact similar border restrictions but courts blocked them—litigation risk is substantial.
Way forward
- Confirm current encounter threshold status before advising any client with a potential southern border crossing or asylum claim. Check CBP’s rolling 7-day average data.
- Prioritize lawful pathways like CBP One appointments, parole programs (Cuba, Haiti, Nicaragua, Venezuela), and family reunification channels over unauthorized crossing.
- Preserve alternative grounds for clients already in the U.S.: individuals inside the country may not be subject to this bar, and asylum eligibility may differ for those who present at ports of entry.
- Monitor litigation on 212(f) constitutional challenges and expect regulatory guidance from DHS/DOJ on implementation and exceptions.
Disclaimer
We’re a software company, not a law firm. This article is not legal advice. Please consult a licensed immigration attorney to understand how this order affects your specific situation and to verify the current threshold status. Immigration policy can change without notice; always confirm against the primary source linked above and current agency guidance.