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Migrant advocates say the rule will cause vulnerable people to be returned to dangers they fled — not based on the merits of their case, but based on an “arbitrary� threshold of 2,500 daily migrant arrests, said Pedro De Velasco, director of education and advocacy for binational nonprofit Kino Border Initiative.

“It’s inhumane, cruel and irresponsible to simply turn our backs to folks fleeing danger and ignore their requests,� De Velasco said Tuesday. “Just like, ‘I’m sorry, you’re number 2,501, so you’re out of luck today. I hope you don’t die.’�

But U.S. Sen. Mark Kelly said Biden’s executive order is “a welcome action that will help address urgent needs at the border.� His Arizona Democratic colleague, U.S. Rep. Greg Stanton, said, “This executive action will take immediate steps to reduce the burden on law enforcement, our under-resourced immigration system, nonprofits and border communities in Arizona.�

The long-anticipated Biden signed Tuesday will ban asylum for most border-crossers once the Border Patrol’s migrant-apprehension rate reaches a seven-day average of 2,500 arrests between ports of entry at the U.S.-Mexico border.

Asylum requests would only be processed again after the average daily apprehensions rate fell to 1,500, which last happened in the summer of 2020, at the height of the pandemic, the Associated Press reported.

Current migrant-arrival volumes exceed that threshold, so the order will likely go into effect immediately and remain active for the foreseeable future, said Kathleen Bush-Joseph, policy analyst with D.C.-based Migration Policy Institute, which aims to improve immigration policies through research and analysis.

The Biden administration said in a Department of Homeland Security that the executive order is the latest in a series of border-security actions, noting that in the past year, the administration has “removed or returned more than three-quarters of a million people, more than in any fiscal year since 2010.�

“This action will help us regain control of our border,� Biden said Tuesday. “The goal is to deliver decisions on asylum as quickly as possible.�

Kelly, while praising the action, said “but make no mistake, this is only necessary because Congress has failed to do its duty to help fix the border and there is no substitute for that.�

Congressional Republicans dismissed Biden’s order as a “political stunt,� the AP reported.

“He tried to convince us all for all this time that there was no way he could possibly fix the mess,� Republican House Speaker Mike Johnson said at a news conference. “Remember that he engineered it.�

Legal experts say Biden’s executive order will face the same legal challenges as did the Trump administration when it used the same authority — Section 212(f) of the Immigration and Nationality Act — to deny asylum to migrant arrivals between ports of entry in 2018. It’s also the authority Trump used to justify his 2017 “Muslim Ban.�

Federal courts have repeatedly ruled that the refusal to process asylum requests violates U.S. law, which allows anyone to request asylum on U.S. soil, regardless of how they entered the country.

The American Civil Liberties Union announced Tuesday it will sue the Biden administration over the order.

“It was illegal when Trump did it, and it is no less illegal now,� said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

Under Biden’s executive order, migrants who arrive at the border but do not affirmatively express fear of returning to their home countries will be subject to immediate removal from the United States and could face a five-year bar from reentering the U.S., as well as potential criminal prosecution, the AP reported.

Exceptions include migrants facing an acute medical emergency, an imminent and extreme threat to life or safety, and victims of trafficking.

Previously, border agents were supposed to ask migrants if they were in fear for their life but under the executive order, asylum seekers will have to know to affirmatively make the request, Bush-Joseph said.

Those who express that fear or an intention to seek asylum will be screened by a U.S. asylum officer, but at a higher standard than is currently used. If they pass the screening, they can pursue more limited forms of humanitarian protection, including the U.N. Convention Against Torture, the AP reported.

Under U.S. law, the government cannot return asylum seekers to a country where they will face torture, Bush-Joseph said.

Advocates with the nonprofit legal aid group Florence Immigrant and Refugee Rights Project will be watching closely to see how the policy is implemented, said Chelsea Sachau, managing attorney for the Tucson-based group’s Border Action Team.

Over the past year, the nonprofit’s legal advocates, who partner with Kino Border Initiative, have heard migrants report that border agents coerced them into signing “voluntary return� forms before returning them to Mexico, even as the migrants were claiming fear and requesting asylum, Sachau said. Migrants reported they were threatened with incarceration, or denied needed medications, until they signed the “voluntary� forms, she said.

“We’ve been seeing for the past year a sort of pseudo-expulsion policy happening, at least locally in the Tucson Sector, that primarily targets Mexican nationals and we believe Central American nationals,� she said. “With this new (order), we’re really concerned. We need time to see how it plays out considering what’s been already happening.�

Dangerous for Mexican nationals

The order is particularly dangerous for Mexican nationals fleeing violence just south of the U.S. border, who would be returned directly to their country of persecution, said De Velasco of Kino Border Initiative.

That’s concerning at a time of escalating violence and widespread impunity in Mexico, where organized crime groups have expanded territorial control dramatically in recent years, De Velasco said.

“Mexican nationals are being completely left out of any protections,� he said. “There’s an unwillingness to recognize just how bad violence is in Mexico, not only by the Mexican government, but by the U.S. government, too.�

One of the latest examples came on Monday, in the Mexican border town of San Luis Rio Colorado, Sonora, where armed men “ambushed� and killed the municipal police chief, Gerardo Camacho, and another officer, according to the Sonoran Attorney General’s Office, which is investigating the shooting.

More then 75% of arrivals at Kino Border Initiative’s resource center in Nogales, Sonora are from Mexico, mostly the southern state of Guerrero, De Velasco said.

In 2023, about 83% of migrants at Kino Border Initiative reported they were fleeing violence and persecution in their home communities — a dramatic reversal from 2016, when 70% said they were migrating for economic reasons, De Velasco said.

The order does not affect asylum seekers entering the U.S. at ports of entry with appointments through the CBP One smartphone app, which the Biden administration’s Circumvention of Lawful Pathways rule says is the only legitimate way for most asylum seekers to enter the U.S. to request asylum, despite the limited number of daily appointments available. The rule is still in effect as the Biden administration appeals a July 2023 federal district court ruling that found it unlawful.

Advocates say the requirement to use CBP One under the “Circumvention of Lawful Pathways� rule is an impossible barrier for most asylum seekers. Many are waiting up to eight months in dangerous conditions in Mexico, hoping to secure an appointment. Only 100 daily appointments are available at Nogales’ DeConcini port of entry.

At Casa de la Misericordia migrant shelter in Nogales, Sonora, residents have been nervous about the Biden administration’s promises of a crackdown on asylum, Alma Angélica Macías Mejía, director of Casa de la Misericordia, said Tuesday.

“Every time there are elections there’s a lot of stress, both for migrants and for those that shelter them,� Macías Mejía said in text messages written in Spanish. “And even more so when they (politicians) issue measures that directly affect them, because they feel threatened in their process of searching to save their lives. ... Getting to the border involves so much tragedy.�

Though all migrants at Casa de la Misericordia are trying to use the CBP One application to request asylum, as mandated by the Biden administration, some who fear for their lives while waiting for an appointment in Mexico can become desperate enough to try to cross between ports of entry, she said.

Sachau, of the Florence Immigrant and Refugee Rights Project, said migrants fleeing for their lives won’t be deterred from trying to reach safety, because they have no other option.

“Desperate people are going to do whatever they can to access safety for themselves and children,� she said. “If the U.S. government is going to stress that people have to come through ports of entry, the U.S. government needs to make the ports of entry dramatically, exponentially more accessible to our clients.�

Lack of resources will limit impact

The tangible impact of Biden’s executive order will be limited by the small number of asylum officers, about 800, to carry out credible-fear screenings, said Aaron Reichlin-Melnick, policy director at the immigrant-rights nonprofit American Immigration Council.

Most asylum seekers who enter the U.S. between ports of entry are already presumed ineligible for asylum, under the existing “Circumvention of Lawful Pathways“ rule, implemented in May 2023, he said. But the rule is only being applied to 15% to 20% of migrants, due to too-few asylum officers to conduct credible fear interviews.

That’s why most asylum seekers are being released into the U.S. to await immigration court hearings, Reichlin-Melnick said. That constraint won’t change without additional resources from Congress.

“You still have fundamental resource bottleneck,� he said. “Simply changing the standard would fundamentally not address those underlying resource limitations that are preventing the U.S. government from putting everyone through credible-fear interviews.�

The Senate border-security bill, which U.S. senators, , declined to put to a vote last month, would have added 4,000 asylum officers, Reichlin-Melnick said.

The rapid deportations called for under the executive order would also require sufficient funding for detention space, Immigration and Customs Enforcement officers and planes to fly people back to their home countries, Bush-Joseph said.

Like under the pandemic-era Title 42 policy, most migrants affected by the ban will likely be Mexicans and Central Americans, whom the Mexican government has agreed to accept, she said.

The U.S. can’t deport migrants to countries — like China and Venezuela — that refuse to accept them, Reichlin-Melnick said.

Longtime U.S. Rep. Raúl Grijalva, a Tucson Democrat, said the Biden executive action is “a significant departure from President Biden’s promise of a more humane and just approach to immigration.�

“It tramples on the universal right to claim asylum and prevents migrants from attempting to legally access safety and security in the United States. It is ripe for legal challenges and antithetical to our values,� Grijalva said Tuesday. “Rather than appeasing Republicans who continuously refuse to work on bipartisan legislation and block immigration solutions for political gain, I urge President Biden, instead, to use his authority to take concrete action to help fix our broken immigration system.�

That includes expanding legal pathways to immigrate to the U.S. and making it easier for asylum seekers to enter at ports of entry, Grijalva said.

Biden said he would prefer more lasting action via legislation, but “Republicans have left me no choice.�

Instead, he said he was acting on his own to “gain control of the border� while also insisting that “I believe immigration has always been the lifeblood of America. ... We must face the simple truth: To protect America as a land that welcomes immigrants, we must first secure the border, and secure it now.�

De Velasco said Biden’s recent action represents a betrayal of his campaign promises to protect the right to asylum and is more about “the perception of border security� than reality.

“It’s politics getting in the way of humanity,� he said.