Stephen Yale-Loehr

Professor of immigration law

“Republicans claim the Biden administration has not done enough to secure the border; yet, the Biden administration issued tough restrictions on asylum seekers in June, causing unlawful border crossings to plunge to a four-year low. However, this also prompted litigation claiming that such restrictions are illegal under the immigration statute.

“Now there are reports that the Biden administration is debating changes that would make it harder to lift the June asylum restrictions, including drafting plans to change the criteria that would be used to deactivate the border restrictions.

“Under the June restrictions, when southern border encounters with migrants reached an average of 2,500 per day over a week period, most migrants entering between ports of entry are ineligible for asylum. Those restrictions took effect immediately.

“The June rule stated that the asylum restrictions will be lifted if the seven-day average of daily illegal border crossings falls below 1,500. Under the proposed changes, the asylum restrictions would be lifted only if the seven-day average of unlawful border crossings stay below 1,500 for 28 days, four times as long.

“Courts have said that all presidents have wide authority on immigration because immigration touches on foreign relations and sovereignty. But that power is not absolute. Immigrants’ rights advocates have already sued President Biden to try to stop his June executive action. If the Biden administration issues further restrictions, expect further litigation. Ultimately, the Supreme Court may have to decide when a president goes too far on immigration.”