The enforcement of this policy is only triggered when daily encounters with illegal immigrants at the border surpass 2,500 for seven consecutive days. This ban is lifted when daily encounters fall below 1,500 a day for one week. This program’s complex provisions still allow hundreds of thousands of illegal entries annually. Currently, roughly 4,000 daily arrests are made at the Southern border, far above this threshold.¹ The Order comes with humanitarian exceptions: unaccompanied children, victims of trafficking, or migrants facing medical emergencies or, vaguely, threats to their safety, can continue to seek asylum.

All other migrants seeking asylum must use the Department of Homeland Security’s CBP One mobile app to schedule an asylum hearing prior to reaching a port of entry. This reliance on CBP One to facilitate asylum processing is especially important to Landmark.

In September 2023, Landmark submitted a Freedom of Information Act (FOIA) request with the Department of Homeland Security for data on the use and effectiveness of CBP One in processing asylum requests. We request records to determine how those using the CBP One app obtained their smart phones. Is DHS providing phones to those seeking asylum? Not surprisingly, DHS has dragged its feet in providing records responsive to the Foundation’s request. To date, DHS has not provided any of the requested records.

The Biden Administration’s refusal to comply with our FOIA leaves lawmakers and the American public in the dark about CPB One’s effectiveness, even as they expand its use.

President Biden is claiming authority from sections 212(f) and 215(a) of the Immigration and Nationality Act (2011). These sections empower the president to restrict immigration when he deems it “detrimental to the interests of the United States”² and implement necessary “limitations and exceptions”³ on immigration. Biden believes that daily border encounters above the threshold of 2,500 severally impair border security’s ability to process asylum seekers. This is similar to the argument former President Trump made in his 2018 immigration Executive Order. President Trump also claimed authority under the Immigration and Nationality Act; however, a federal judge blocked his Executive Order after challenges from immigration groups and Democrats.⁴ The ACLU has announced it will challenge the Biden order.

1. U.S. Customs and Border Protection, Southwest Land Border Encounters, CBP.gov, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited June 4, 2024).  ↵
2. 8 U.S.C. 1182(b) ↵
3. 8 U.S.C. 1185(a) ↵
4. Miriam Jordan, Federal Judge Blocks Trump’s Proclamation Targeting Some Asylum Seekers, NEW YORK TIMES (Nov. 20, 2018), https://www.nytimes.com/2018/11/20/us/judge-denies-trump-asylum-policy.html ↵