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Biden Prepares Executive Action to Stop Migrants from Mexico

By Vaidehi Mehta, Esq. | Last updated on

There’s been recent surges in migrant crossing at the southern border of the United States. According to data from the U.S. Customs and Border Protection, last December saw 250,000 migrants crossing from Mexico. For comparison, the previous peak was in May 2022, when 224,000 did so. We anticipated this result in our previous blog on the expiration of Title 42, a law that allowed border patrols to expel crossers and asylum seekers. Since December, it seems that the spike went down, with this past April seeing only about 129,000 migrant encounters.

Even before Title 42 expired, there was mounting pressure on the federal government from states to do something about the border crisis. Red states started taking their own measures to curb the flow of migrants into their states, with Texas even deploying soldiers from the National Guard to “repel” migrants from the border. Even blue states have called President Biden out to do something about the issue, with New York City’s mayor issuing an executive order to deal with the "unprecedented humanitarian crisis" and extend protections for asylum-seekers and volunteers organizing in other cities like Chicago to help with the same.

Now, with pressure mounting on both sides of the political spectrum to curb the flow of migrants, the Biden Administration is preparing to issue its own executive action. The action would temporarily suspend the entry of migrants at the Mexico border, much like we saw with Title 42. Many are expecting the POTUS to issue it this week.

Immigration Act Gives President Power

The anticipated presidential action would be legally justified under Section 212(f) of the Immigration and Nationality Act (INA), which gives the President a good deal of power to implement immigration restrictions simply by proclaiming them so. Specifically, the law would allow Biden to suspend the entry of aliens or temporarily place restrictions on their entry if he determined that allowing their entry would be “detrimental” to the national interest. It also gives him the authority to make these restrictions more narrow for a specific class of aliens.

This section of the INA gives the president broad authority. The parts of the statute preceding it lay out various grounds for admissibility for aliens, which Congress deliberated over a lengthy legislative process. But Section 212(f) gives the president the power to trump the requirements that the legislative branch laid out on who can and can’t come into the country.

A Second Title 42?

Does this new executive action effectively “bring back Title 42”? How is it different? Well, the motivations and goals of Section 212(f) and Title 42 are based in different realms. Title 42 is the chapter on federal public health laws, and the law that affected border crossings up until 2023 was related to public health and social welfare. These laws unsurprisingly came into during the COVID-19 pandemic.

Title 42 includes a provision from the 1944 Public Health Services Law that allows the government to limit immigration at the border to prevent the spread of contagious diseases. In March 2020, under the Trump administration, Title 42 was used extensively to quickly expel migrants seeking entry to the United States. This policy was justified as a measure to control the spread of COVID-19. The Biden administration initially continued the policy but planned to end it in May 2022. However, due to legal challenges, it remained in effect until May 11, 2023.

Section 212(f), on the other hand, comes from the INA, which is found in Title 8. Title 8 is the section of the U.S. Code that deals with immigration and nationality law. In other words, it's the rulebook for who can enter the United States, how long they can stay, and how they can become citizens.

One recent example of its use was discussed in the 2018 Supreme Court case of Trump v. Hawaii, when then-president Donald Trump used Section 212(f) to implement travel restrictions to aliens from certainly countries that were majority Muslim. SCOTUS wrote in their decision that this provision of immigration law “exudes deference to the president.”

Again, this executive action from Biden is still being deliberated, and no final decisions have been made. But some think that the proclamation could be coming soon. And if they do, the consequences will be bigger for some than others.

Anticipated Effects

Who will be affected? Well, unaccompanied children tend to receive humanitarian exemptions in cases like this, so fortunately, they will likely have some recourse. U.S. District Court Judge Dolly Gee recently issued an order that set the standards for the treatment of migrant children in Border Patrol’s custody. The agency said in a statement that they “will continue to transport vulnerable individuals and children encountered on the border to its facilities as quickly as possible.”

However, according to data from Pew Research Center, only 5% of the border crossings last December were unaccompanied minors. Families traveling together made up 41% of migrants. The slight majority of people encountered crossing the Mexico border, 54%, were single adults.

Ultimately, the new law will affect who is eligible for asylum. In our other recent news blog, we cover how the United States is already facing a serious shortage of asylum attorneys. The recent surges at the border have already began affecting legal resources available for them. President Biden could sign the executive action into effect as early as tomorrow.

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