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Can President Biden unilaterally shut down key functions of the border?


Can President Joe Biden unilaterally shut down the U.S.-Mexico border?


PRESIDENT JOE BIDEN: We're examining whether or not I have that power.

MARTIN: That was Biden speaking on Univision last week. He is debating his options in this presidential election year, as an immigration bill remains stalled in Congress. For more on the powers of the president at the border, our colleague A Martínez talked to Denise Gilman. She co-directs the University of Texas School of Law's immigration clinic.


I want to be clear on what exactly shutting down the border means.

DENISE GILMAN: What is really meant by shutting down the border in this context is refusing to process asylum seekers, because those are the individuals who, under current law, that's been in place since 1980, have the ability to present a fear claim for asylum at the border and insist on some processing to allow them to move forward with that claim. And so what's meant by shutting down the border is that those claims for asylum will not be processed.

MARTÍNEZ: OK. So that sounds just like Title 42, a pandemic-era policy that virtually closed all avenues for migrants to seek asylum in the U.S. Is that a fair comparison?

GILMAN: It is a very fair comparison because under Title 42, what happened is that if an individual presented at the border or crossed into the United States, even if they claimed asylum, they were immediately sent back to Mexico or to their home country without any processing of that asylum claim. So it would be very similar. Of course, what's different is that Title 42 was purportedly a public health measure. And so once the pandemic was truly completed, then the Title 42 powers no longer existed, and everybody was quite clear on that.

MARTÍNEZ: OK. So what powers exactly does President Biden have to shut down the border?

GILMAN: So what the Biden administration is saying that it might do is invoke a provision in the statute known as 212(f), which is actually the same exact provision that Trump invoked with the original Muslim bans. And that provision, in some circumstances, allows for the exclusion of certain specific categories of individuals. But it does not allow for a wide scale shutting down of an entire asylum program at the border.

MARTÍNEZ: What would be the checks on that provision - on that power? Is it just mainly the courts?

GILMAN: Right. So I feel pretty confident that this action would not go very far, that it would be halted before long, and that eventually, the courts would deem the action to be unlawful under existing standards.

MARTÍNEZ: Now, bipartisan legislation to give the president more resources and power to control the border is stalled in Congress. How likely is it that any reform could get passed before November's election? And as I ask you that question, I kind of think I know the answer.

GILMAN: It seems really unlikely that there's going to be any significant move on immigration before the election. The Trump candidacy has made clear they are not interested in any real movement, because it eliminates some of the strength of the political arguments that they're making around the border. And frankly, I'm not sure that the Biden administration is that interested in moving forward, either, because any movement at the border would have to satisfy both those who are criticizing the Biden administration for not doing enough at the border in terms of enforcement and those who are criticizing the Biden administration for acting with an excessively strong hand on enforcement.

MARTÍNEZ: Yeah. And border policy is one of the many issues that Latinos care about. And while President Biden historically has had pretty strong support from Latinos, I'm wondering what you might think might affect that advantage.

GILMAN: So I do think that Latinos are looking carefully at what the Biden administration is doing and are disappointed. We really haven't seen much progress either for those immigrants who are already in the United States and who are seeking to regularize their status or for those newer arrivals at the border who are seeking asylum protection. What we've really been missing is leadership on the part of the Biden administration to switch the narrative a little bit to recognize the benefits that immigrants bring, as well as our moral obligation to protect refugees, and then to really engage in actions that back up that kind of framing.

MARTÍNEZ: That's Denise Gilman, director of the University of Texas School of Law's immigration clinic. Denise, thanks.

GILMAN: Thank you very much.

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