Biden administration weighs taking specific actions without Congress to stem the migrant flow at the border

Hundreds of migrants arrive in Ciudad Juarez to cross into the United States before Title 42 ends (David Peinado Romero / Anadolu Agency via Getty Images file) © David Peinado Romero

WASHINGTON — The Biden administration is considering taking unilateral action without Congress to make it harder for migrants to pass the initial screening for asylum at the U.S.-Mexico border and quickly deport recently arrived migrants who don’t meet the criteria, say three U.S. officials with knowledge of the deliberations.

The actions, which are still weeks away from finalization, are an effort to lower the number of migrants crossing the southern border illegally as immigration remains a top issue for voters heading into the 2024 presidential election.

Under the new policies, asylum officers would be instructed to raise the standards they use in their “credible fear interviews,” the first screening given to asylum-seekers who are trying to avoid deportation for crossing the border illegally. And Immigration and Customs Enforcement would be told to prioritize recently arrived migrants for deportation, in a “last in, first out” policy, the officials said.

A congressional aide with knowledge of the deliberations said the Biden administration has yet to make a decision, but raising the bar on asylum and deporting more newly arrived migrants are considered “low hanging fruit” and actions that can be taken quickly.

The three U.S. officials said it is unclear whether the policies would be achieved through executive order or a new federal regulation, which could take months to implement.

Making it harder to claim asylum and fast-tracking migrants for deportation are not new ideas, but they are being considered more seriously as the Biden administration looks for ways to tamp down chaos at the border after Republicans blocked border security provisions in the National Security Supplemental bill earlier this month.

Without the bill, any action the president takes unilaterally will be limited in scope because the Department of Homeland Security is short on funding.

ICE is currently facing a budget shortfall of more than $500 million and may have to start cutting key services by May without more money from Congress, sources told NBC News last week.

One DHS official expressed skepticism over the “last in, first out” policy because it would leave millions of migrants already in the U.S., including thousands of homeless migrants in major cities, in a long legal limbo as their immigration cases are pushed to the back of the line.

A spokesperson for DHS emphasized that Congress should still act to avoid compromising border enforcement.

“If Congress once again refuses to provide the critical funding needed to support DHS’s vital missions, they would be harming DHS’s efforts to deliver tough and timely consequences to those who do not have a legal basis to remain in the country,” the spokesperson said. “There are real limits to what we can do given current funding because Congress has failed to pass a budget or respond to the President’s two supplemental budget requests. We again call on Congress to act and provide the funding and tools our frontline personnel need.”