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 shutdown would go into effect immediately since that threshold has already been met, and the border would reopen only once that number falls to 1,500. This marks a significant policy shift with immediate implications for how you advise asylum-seeking clients and time their border presentations.
What changed
The president’s order would come under the Immigration and Nationality Act sections 212(f) and 215(a) suspending entry of noncitizens who cross the southern border into the United States unlawfully. A shutdown would not block trade, travel or entry by immigrants presenting themselves lawfully for asylum at ports of entry, but it would block migrants from applying for asylum if they crossed the border between ports of entry during the shutdown.
The order also makes it easier to deport people back to Mexico. The thresholds are calibrated to 7-day rolling averages: asylum processing suspends at 2,500 daily encounters and resumes at 1,500 or lower.
Why it matters
This order fundamentally alters your client intake and case strategy. If your client must seek asylum at the southern border, you now have two distinct pathways with opposite legal consequences:
- Lawful port-of-entry presentations: Still available. Clients using the CBP One app or scheduling appointments at official ports of entry can present asylum claims even during a border closure.
- Unlawful crossings between ports: Barred from asylum eligibility during the closure. Any client crossing unlawfully while the threshold is exceeded cannot request asylum protection, making removal and deportation significantly easier.
The immediate practical impact: the curbs will remain in place until numbers fall back down below 1,500 illegal crossings a day. This is likely to be sustained for months given that daily encounters at the U.S.-Mexico border are currently averaging more than 4,000. You must advise clients to use lawful appointment-based processes—not unlawful crossings—if they wish to preserve asylum eligibility during this period.
Way forward
- Verify current encounter levels before advising any asylum-seeking client on border presentation strategy. The closure is tied to rolling 7-day averages; once published daily encounter data drops below 1,500 for 14 consecutive days, the bar automatically reopens.
- Direct clients to CBP One (the DHS scheduling app) or official port-of-entry appointment processes to preserve asylum eligibility. Unlawful crossings currently result in ineligibility.
- Document the closure threshold in case files when advising clients on timing. If your client presents at a port of entry and the closure is in effect, their claim should still be heard; conversely, if they cross unlawfully, you will need to develop alternative grounds of relief not dependent on asylum (withholding of removal, CAT, family-based petitions, etc.).
- Monitor the 1,500-encounter threshold as the condition for reopening. You may need to advise clients on new filing windows if and when unlawful-crossing asylum eligibility is restored.
Disclaimer
This article is not legal advice. Fola Forms is a software company, not a law firm. Immigration law is complex and frequently changing. Always verify the current status of this policy against the primary source linked above and consult with a licensed immigration attorney who can review your specific facts and circumstances. Executive orders can be challenged, modified, or rescinded, and encounter thresholds may shift without public notice.