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Biden's new border rule goes into effect tonight and significantly curtails asylum access

A new asylum policy laid out in an executive order from the White House on Tuesday goes into effect Tuesday night at midnight. 

The new rule closes the border to asylum claims with few exceptions, including most unaccompanied children. It's triggered if and when the number of migrants apprehended between ports of entry exceeds 2,500 people border-wide, for more than seven days. That’s already happening — the latest CBP data, from April, shows a daily average of more than 1,000 apprehensions in the Tucson Sector alone. 

Luis Miranda, principal deputy assistant secretary for communications for the Department of Homeland Security, says Border Patrol agents are currently apprehending around 4,000 people per day, border-wide. It's a significant decrease from the number of encounters border officers were reporting late last year, when hundreds of migrants and asylum seekers were awaiting processing in remote corners of the border,  like Lukeville. 

"But it is still higher than it should be," Miranda said. "And part of the reason for that is because our asylum system needs Congress to step in and fix it, so that individuals who don't have a legitimate claim can be processed more quickly." 

Some changes, like numbers-based shutdowns and additional Border Patrol personnel, were part of a bipartisan border security package that lawmakers failed to move forward earlier this year. Miranda says the new rule will place additional penalties, like bans from the U.S., on those who try to cross the border when the policy is in effect.

"And so what this restriction does is anyone who crosses illegally or irregularly at the southern border, is ineligible for asylum," he said. 

Come midnight Tuesday, those encountered between ports of entry will be put into a fast-tracked deportation process and barred from accessing the asylum system. 

Rights groups say that goes against international asylum rules, and the ACLU has already  said it intends to file suit against the policy. Miranda says the administration would not speculate on potential litigation.

Hannah Flamm — policy counsel focused on Latin America and the Caribbean at the International Refugee Assistance Project, or IRAP — says asylum seekers already face a higher threshold to get protection in the U.S. under a law that went into effect last spring. 

"The default is that at minimum there is a screening as a matter of course that will evaluate you for either asylum or something similar or inferior to asylum, like withholding of removal," she says. "In contrast, with the rule as of tonight, if you are encountered and placed into this fast-tracked deportation process, nobody asks you, 'are you afraid to return to your country,' rather, the default is that you are processed expeditiously, put on a plane or to Mexico, potentially to a country you have fled for your life."

The White House  says the policy will remain in effect until the number of people border officials encounter goes down to less than 1,500 per day for seven days. 

Santa Cruz County Supervisor Manuel Ruiz was among several local leaders in D.C. this week when the executive order was announced. 

"You know, everybody complains about the border, but nobody does anything," he said. "So, it’s not a perfect solution, but hopefully this will light the fire under Congress to get them to enact some good immigration reform." 

Ruiz says he’d like to see more border personnel, and a speedier process for asylum adjudication.

Alisa Reznick is a senior field correspondent covering stories across southern Arizona and the borderlands for the Tucson bureau of KJZZ's Fronteras Desk.Prior to joining KJZZ, she covered border and immigration at Arizona Public Media, where she was awarded a regional Edward R. Murrow Award for her coverage of Indigenous-led protests against border wall construction.Reznick started her career working in bilingual newsrooms and as a freelance journalist in Amman, Jordan. Her reporting on migration, refugees and human rights has appeared on PRX’s The World, Al Jazeera and Nova PBS, among others. As a recipient of the International Labour Organization's FAIRWAY Reporting Fellowship, she spent six months reporting on labor migration issues across Arab States.Originally from Flagstaff, she likes climbing, being outdoors and Pluto.