No, the Biden administration does not have an open-border policy

On July 31, former President Donald Trump claimed the Biden administration has an open-border policy during a Q&A session with political journalists at the National Association of Black Journalists Convention in Chicago.

“They have bad policies. They have policies of open borders, unbelievable open borders,” Trump told Fox News host Harris Faulkner, one of the session’s moderators, in reference to President Joe Biden and Vice President Kamala Harris. 

Trump said he would “close the border” on day one if he is reelected, adding: “We want people to come in but they have to come in legally.”

Since they’ve been in office, Biden and Harris have faced similar criticism from many Republican lawmakers over their administration’s response to the influx of migrants entering the U.S. at the southern border with Mexico.

THE QUESTION

Does the Biden administration have an open-border policy?

THE SOURCES

• U.S. Code: Title 8
• U.S. Code: Title 42
• The White House
• U.S. Department of Homeland Security
• U.S. Department of State
• American Immigration Council
• Congressional Research Service
• Cornell Law School Legal Information Institute
• Immigration and Nationality Act
• UNHCR, the UN Refugee Agency
• Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute
• David J. Bier, director of immigration studies at the Cato Institute, a libertarian think tank
• Rebecca Hamlin, Ph.D., director of the Legal Studies Program and professor of legal studies and political science at the University of Massachusetts Amherst

THE ANSWER

No, the Biden administration does not have an open-border policy.

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WHAT WE FOUND

The Biden administration does not have an open-border policy. Immigration studies experts say the claim that the U.S. has “open borders” under Biden is a myth that is not only inaccurate but unrealistic.

“President Joe Biden has faced repeated criticisms from Republicans and some Democrats that his border policy amounts to ‘open borders.’ This criticism is not simply inaccurate: it is unhinged from reality in a way that distinguishes itself from normal political hyperbole,” David J. Bier, director of immigration studies at the Cato Institute, said in 2021.

“U.S. immigration policy is effectively closed borders, and Biden’s immigration policies and goals are largely the same as those of President Donald Trump,” Bier added.

Rebecca Hamlin, Ph.D., director of the Legal Studies Program at the University of Massachusetts Amherst, agrees.

“I’ve been studying immigration politics for now 20 years, and I haven’t seen such a mismatch between the accusations of one party and the policies of the other, which are actually not close to open and probably stricter than what we’ve seen in a long time," Hamlin told Newsweek in 2022.

Under federal immigration law, it is illegal for anyone in the world to immigrate to the U.S. unless they fall into very narrow exceptions, such as a select few high-skilled workers or the families of U.S. citizens, according to Bier and the American Immigration Council.

One exception is admitting refugees or those facing persecution in their home countries. Bier says the president has undisputed authority under the law to admit as many refugees from abroad as he wants each year.

The president, in consultation with Congress, sets the limit and picks whoever he considers “of concern” to the U.S. But in 2021, the Biden administration fell short of the refugee admissions cap, admitting 11,411 refugees out of the president’s revised refugee admissions cap of 62,500, which was the lowest number of refugees the U.S. has seen since 1980.

Bier says the Biden administration has also “imposed restrictions on applying for asylum far beyond those required by law.” Asylum allows people to remain in the U.S. instead of being deported to a country where they fear persecution or harm, the UN Refugee Agency says on its website. 

Trump and Biden both invoked Title 42, a pandemic-era rule that Border Patrol used to “immediately expel any individual encountered attempting to enter the United States in violation of travel restrictions.” Title 42 expulsions began on March 21, 2020, and ended on May 11, 2023, when the Biden administration ended twin national emergencies for addressing COVID-19.

In April 2023, the U.S. Department of Homeland Security and the U.S. Department of State both said that “the lifting of the Title 42 order does not mean the border is open.” Instead, the agencies said that the end of Title 42 meant that the government would transition back to immigration procedures outlined in Title 8.

Under Title 8, people who unlawfully cross the border are subject to criminal consequences, including possible deportation, prosecution and a five-year bar on reentry. These penalties were not enforced under Title 42.

Border crossings still remained at record highs in late 2023. To combat this issue, Biden unveiled plans in June to halt asylum processing at the U.S.-Mexico border when illegal entries reach a threshold he deems excessive. The measure took effect immediately because the policy is triggered when arrests for illegal entry reach 2,500, according to senior administration officials. About 4,000 people already are entering the U.S. each day.

Under the measure, migrants will be issued deportation orders even if they are denied a chance to seek asylum. That will expose them to criminal prosecution if they try again and ban them for several years from legally entering the country. It’s a key difference.

Biden said he had contemplated unilateral action for months after the collapse of a bipartisan border security deal in Congress that most Republican lawmakers rejected at the behest of Trump. Instead, the president said he was acting on his own to “gain control of the border.”

Arrests of migrants for illegally crossing the southern border plummeted about 30% in July to a new low for Biden’s presidency, according to federal officials, raising prospects that the temporary ban on asylum may be lifted soon.

VERIFY found that it’s not possible for Biden or any other president to completely shut down the border, with an executive order or otherwise, because doing so would violate existing federal laws. 

A president can, however, issue an executive order to restrict certain groups of people from entering the U.S., as Trump and others have done in the past. 

Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, told VERIFY in March that the idea of a completely closed border is not realistic.

“I think maybe people imagine that the border would be fully closed – that nobody could come across unless they had a legal visa and were coming to a legal crossing point. In reality, that’s not possible,” Gelatt said.

The Associated Press contributed to this report. 

This story is also available in Spanish / Lee este artículo también en español: No, la administración Biden no tiene una política de frontera abierta