Biden Weighs Executive Action to Restrict Illegal Immigration, Despite Earlier Claim He Needed Congress to Act

President Joe Biden and his administration may soon take executive action to enact harsher asylum policies to address the growing illegal immigration crisis, even after claiming it was impossible for him to do so without congressional approval.

Biden is weighing unilateral action to make it harder to claim asylum for migrants arriving at ports of entry at the southern border, according to three U.S. officials who anonymously spoke to NBC News. The measure Biden is considering taking mirrors that of provisions in the Senate bill released in early February – which he insisted needed to be passed in order for him to alter asylum regulations.

“I’ve made it clear that we need Congress to make changes to fix what is a broken immigration system, because we all know it’s broken,” Biden said during a press conference on Dec. 6. “Republicans have to decide if they want a political issue or if they want a solution at the border. Do they really want a solution? It cannot be sustained as it is now.”

The possible executive action Biden may take is raising the standards used during “credible fear” interviews with migrants seeking asylum, the officials told NBC. Officials can determine during asylum screening interviews whether migrants have a credible fear of persecution if they are forced to return to their home country.

This potential measure reflects provisions of the failed Senate border security bill that was released in early February, which would have raised “the asylum screening standard by amending the definition of ‘credible fear of persecution,’” according to the bill summary.

Biden and his administration insisted he needed Congress to pass the bill for him to take action in securing the southern border, including by strengthening asylum standards. The Biden administration also cast blame on Republican congressional members for stonewalling him, telling them to “stop playing games with border security.”

“What’s been negotiated would – if passed into law – be the toughest and fairest set of reforms to secure the border we’ve ever had in our country,” Biden said on Jan. 26. “It would give me, as President, a new emergency authority to shut down the border when it becomes overwhelmed … If you’re serious about the border crisis, pass a bipartisan bill and I will sign it.”

“I’ve done all I can do. Just give me the power. I’ve asked from the very day I got into office,” Biden said during a press gaggle on Jan. 30.

The bill died in the House, and an amended version — one that kept international aid but stripped border funding — subsequently passed in the Senate; it is up to the House as to whethe it will now be taken up or not. Several Republican congressional lawmakers were irked that the bill’s loose border provisions would actually worsen the illegal immigration crisis issue, also taking issue that it was tied to billions in Ukraine aid.

“Congressional Republicans took one look, killed it, and left town,” Biden said in a statement on Feb. 15. “For them, it was never about the border. It was about playing politics.”

“I want to be absolutely clear about something: The American people are going to know why it failed,” Biden warned during remarks on Feb. 6. “Every day between now and November, the American people are going to know that the only reason the border is not secure is Donald Trump and his MAGA Republican friends.”

The details of Biden’s new unilateral actions – which may be done through an executive order or federal regulation – could be finalized in the coming weeks, though it may take months for his actions to take effect, the officials told NBC. Biden has taken such executive action beforereversing several Trump administration border policies on his first day in office.

Illegal immigration has surged under Biden. Approximately 2 million migrant encounters were recorded at the southern border in fiscal year 2023, compared to 1.7 million in fiscal year 2021, according to Customs and Border Protection. There have been approximately 500,000 migrant encounters at the southern border in fiscal year 2024.

The White House did not immediately respond to a request for comment.

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By Melinda Davies
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