Migrants who arrive at the U.S.-Mexico border without first seeking protection in a country they passed through – or without first applying online – will largely be denied asylum under a new immigration order that’s set to go into effect when Title 42 expires.

The new rule was finalized by the U.S. Department of Homeland Security on Wednesday –  just hours before Title 42 expires at 9:59 p.m. El Paso time (MST) on Thursday. The rule, first announced in February, includes measures meant to curb illegal border crossings while opening new legal pathways for migrants, Homeland Security Secretary Alejandro Mayorkas said in a press conference from Washington, D.C., on Wednesday.

The measures were quickly criticized and denounced by migrant advocacy groups.

“What they want is the authority, reasons, to reject asylum seekers at the border,” said Fernando García, executive director of the Border Network for Human Rights as his organization set up a “know your rights” information booth outside Sacred Heart Church in South El Paso on Thursday. 

He equated the Biden administration’s rule to that of former President Trump’s transit ban: “That means that if you didn’t apply in Mexico for asylum, we’re going to automatically reject you, which is a violation of international law, and also violation of our own U.S. laws – of due process.”

Targeted enforcement

Around Sacred Heart on Wednesday there were fewer than 200 migrants – contrastingly less than the 1,200 who crowded the area on Tuesday before many surrendered to border enforcement agents as part of a federal “targeted enforcement operation” against those who were in the country without proper documentation.

The situation was about the same at the El Paso Opportunity Center for the Homeless on Wednesday, where fewer than 50 migrants remained in the alleyway that had seen 225 people there the day before and up to 800 over the weekend.

“Yesterday they told me to turn myself in, but I didn’t want to because I was scared,” said Isaias, a Venezuelan migrant who was resting on blankets in the alley adjacent to Sacred Heart. He did so anyway, was processed, and was released at 2 a.m. He returned to the church grounds.

“I don’t know anywhere else to go, but I want to leave,” he said, adding that he doesn’t have the money he needs to travel to Chicago, where he knows people and hopes to find work. El Paso Matters doesn’t identify migrants by their full names because many fear persecution.

Officials with DHS, Border Patrol and Customs and Border Patrol didn’t respond to El Paso Matters’ inquiries about how many migrants like Isaias surrendered on Wednesday after border enforcement agents dropped off flyers asking them to turn themselves in.

Ruben Garcia, founder and director of the Annunciation House, said if he had to offer a rough “guesstimate,” he’d put that number at about 1,000.

“It looks like things went well,” Garcia said. “But we’re still waiting to see if people are being released. There’s some signs that they are.”

When asked during the press conference about the operation in El Paso and how migrants can be screened so quickly, Mayorkas said every individual encountered is vetted.

“The vast majority of individuals will be returned, those who do not qualify, from Border Patrol stations or (Immigration and Customs Enforcement) detention facilities,” he said. “We often release individuals into immigration enforcement proceedings, and those individuals, if they do not qualify for relief, will be removed.”

The new rule

Title 42, which was invoked at the start of the COVID-19 pandemic in March 2020, allowed the U.S. to quickly expel migrants from eight countries – including Venezuela, El Salvador and Guatemala – without giving them an opportunity to seek asylum. Since then, the policy has been applied more than 2.8 million times, officials said.

The policy’s expiration was supposed to open the pathway to asylum for people from those countries who meet certain requirements.

Starting Thursday night, however, the new rule “presumes that those who do not use lawful pathways to enter the United States are ineligible for asylum,” Mayorkas said.

“It allows us to remove individuals who do not establish a reasonable fear of persecution in the country of removal,” he said. “Noncitizens can rebut this presumption only in very limited circumstances, for example, if they have used our lawful pathways or sought asylum or protection in another country through which they have traveled and were denied.”

Mayorkas said those who do not claim fear of persecution if they’re expelled will be removed immediately; while those who claim fear will “encounter a higher threshold under our asylum rule.” He said that screening will be done “fairly, with access to counsel, but expeditiously” with the help of a “surge” of 1,000 asylum officers to address the expected influx of migrants.

What’s to come

Dylan Corbett, executive director of the Hope Border Institute in El Paso, called the new measures a “blow” to asylum.

“Make no mistake. While the new Biden border policy is dressed in the neutral language of incentives and disincentives, it is a major blow to U.S. commitment to asylum, an unforced error by a Democratic administration that will be hard to repair, and will result in pain and death,” Corbett posted on Twitter.

In an interview with El Paso Matters, Corbett called the policy regressive and said the result will be “real human need on the other side of the border.”

“Unfortunately, the burden is going to fall on border communities and straight on the shoulders of migrants,” he said. 

That’s because many won’t be eligible for asylum under the new rules, and others who are caught crossing illegally could be deported under Title 8 and face tougher consequences, including a five-year ban on re-entry and criminal prosecution. 

Many migrants will be trapped in Mexico, a country which Garcia, of the Border Network for Human Rights, said few want to remain, especially after the deadly fire at the detention center where 40 migrants died.

“What I think is going to happen is that these measures are going to deepen the humanitarian crisis there,” he said, adding that there will be larger camps of people than were seen in the past few months as people waited for Title 42 to expire. 

The numbers of people in migrant shelters in Juárez have dwindled the past few weeks, leaving many to believe that many of those migrants entered the U.S. illegally and largely ended up at Sacred Heart, the Opportunity Center and other areas across El Paso.

Ramon Granados, a retired El Pasoan who says he spends most of his days Downtown, said he’s glad to see the large number of migrants around Sacred Heart decrease.

“It’s sad to see how many are getting caught by Border Patrol and the police when they cross into other streets, but there’s just too many to handle,” Granados said as he smoked a cigarette outside the Bodega Natural store on Father Rahm Street nearby. “You feel unsafe with some and others you feel sorry for.”

But hundreds more people continue lining up along the banks on both sides of the Rio Grande, seeking to be processed by Border Patrol at the U.S. side of the border wall near Yarbrough Drive.

On Wednesday, migrant families reacted with smiles, tears and waves as they were escorted to a transport bus that was to take them to a processing center. Many had camped near Gate 42 of the wall for days. 

Among them was Elizabeth Ramirez, a Mexican migrant whose 13-year-old daughter was murdered in Sonora. She weeped as she crossed the border at the gate carrying her child’s ashes.

El Paso Matters senior reporter Elida S. Perez and photographer Corrie Boudreaux contributed to this report.