Biden administration says new immigration policy has slashed the number of migrants who can claim asylum at the border

"There has been an immediate reduction in encounters at the border,” said a top DHS official in a court filing.

Migrants walk along the U.S.-Mexico border fences June 6 in Yuma, Ariz.Qian Weizhong / VCG via Getty Images file

The Biden administration’s new immigration policy has drastically reduced the number of migrants allowed to apply for asylum at the southern border, according to a recent court filing by the administration, sparking backlash from advocates.

Since the start of what is known as “asylum ineligibility,” only 46% of single adult migrants who have crossed the southern border have been allowed to claim asylum, compared to 83% from 2014 to 2019, according to the court filing.

In a lawsuit brought by immigration advocates, led by the American Civil Liberties Union, the Biden administration argued that if the court blocked its asylum policy, the number of border crossings could rise to record highs, overwhelming border communities and potentially pushing the Department of Homeland Security to release migrants without court dates to avoid overcrowding.

In a court filing Friday, Blas Nuñez-Neto, DHS’ assistant secretary of border and immigration policy, said, “The rule’s implementation has generated widespread understanding that DHS has strengthened consequences at the border for those who enter without authorization even as DHS has significantly increased lawful pathways and processes for noncitizens to come to the United States in a safe and orderly manner.

“The effect of these developments is that there has been an immediate reduction in encounters at the border,” Nuñez-Neto said.

The Los Angeles Times was first to report on the Nuñez-Neto filing Tuesday. 

Since the pandemic-era policy known as Title 42 was lifted last month, DHS has allowed migrants to be screened for asylum if only they can prove that they previously tried to apply for asylum in countries they passed through or that their cases are exceptions to the rule. Exceptions are made for particularly vulnerable populations, including people who may be victims of torture if they are blocked. 

Since the end of Title 42, border crossings have fallen from over 10,000 a day to roughly 3,500 a day, according to Customs and Border Protection.

Immigration advocacy groups have said the restriction on asylum violates federal law and the international obligations of the U.S.

“We don’t think that is part of an orderly approach to asylum, because it’s going to lead more people to feel that they’re going to have to put themselves back in the hands of the people smugglers,” International Rescue Committee CEO David Miliband said Tuesday, which is World Refugee Day, on MSNBC’s “Morning Joe.”

“No one has a right to live in the United States, but everyone has a right to apply for asylum and achieve some safety,” Miliband said. 

In response to the Friday filing, Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project and an attorney challenging the policy, said, “The government’s predictions about what would occur if the rule were enjoined are speculative and exaggerated, because they are largely based on comparisons to the highly unusual situation created by the end of Title 42. More fundamentally, what the government’s numbers show is that credible asylum seekers are being expelled under the new rule for reasons unrelated to the merits of their claims.”

Nuñez-Neto also said in the filing that about 50,000 migrants have been deported or sent back into Mexico since May 12, when Title 42 ended, another piece of the Biden administration’s new approach to the southern border that quickly removes migrants who don’t qualify for asylum.

A judge in Oakland, California, is expected to rule on whether the rule can stay in place next month; the ruling is likely to be challenged regardless of the decision.