Washington, DC – President Biden is considering the use of a presidential authority dating back to 1952 to address the surge of migrants arriving at the U.S. southern border, according to three sources familiar with the discussions. This law, known as 212(f), allows the president to “suspend the entry” of foreigners if it is determined that their arrival is not in the best interest of the country. The Trump administration had previously used this authority to impose bans on immigration and travel from certain countries, as well as to restrict asylum for migrants who entered the country unlawfully.
The Biden administration is weighing the potential executive action amid record levels of migrant arrivals at the southern border, with sources indicating that a decision could be announced within the next two weeks. This move comes as President Biden seeks to address the challenges at the border, which has become a significant political issue, with polls showing disapproval of his handling of immigration.
If President Biden decides to invoke the 212(f) authority, there would be significant legal and operational challenges to overcome in implementing such a policy at scale. His administration had previously issued a regulation that presumes migrants ineligible for asylum if they enter the U.S. illegally after not seeking protection in a third country, but has struggled to process all migrants under these standards due to resource limitations and a backlog of asylum applications.
Furthermore, any significant restriction on asylum would likely lead to legal challenges, as U.S. law grants migrants on American soil the right to request asylum, even if they cross the border without authorization. This was highlighted by an American Civil Liberties Union lawyer, who stated that any executive order denying asylum based on where one enters the country would likely be met with litigation.
President Biden’s potential use of the 212(f) authority represents a significant shift in immigration policy, as he had previously vowed to “restore” the U.S. asylum system. It also reflects the administration’s attempt to address the growing discontent in Democratic-led cities receiving migrants, as well as the need to secure the border amidst ongoing challenges.