President Joe Biden’s executive order cutting off asylum rights at the border is facing lawsuit threats from organizations that successfully stopped former President Donald Trump’s efforts, including the ACLU, who says the law requires that migrants be screened for asylum privileges.

“The law could not be more clear that it doesn’t matter where you enter, you have to be screened for asylum,” Lee Gelernt, an ACLU attorney who led lawsuits against Trump’s asylum rules, told The Hill. “That’s why this policy of cutting off asylum for people who enter between ports is illegal, and that’s why it was illegal when Trump tried it.”

Under Biden’s executive order, announced earlier this week, the right to seek asylum for immigrants coming in between the nation’s ports of entry will be cut off if there are more than 2,500 border crossings over a seven-day period.

Using border metrics is a new method on older tries to place major limitations on asylum that have been struck down in court. Under current law, asylum seekers can make their claim if they arrive at a port of entry, but also after coming in between the ports of entry because of concerns about the distance between some ports or the difficulty for someone running from danger to reach one of the locations in time.

Biden, however, wrote in his order that for most people, current laws make it impossible to grant protection to those who need it, while allowing the government to quickly deport people who do not establish a legal basis to stay.

The Departments of Homeland Security and Justice, meanwhile, say that a years-long backlog in asylum cases means they can’t “deliver consequences” for people who don’t have a lawful basis to remain in the United States after crossing the border. That, they claimed, creates incentives for migrants to risk making their journey.

The Trump administration introduced its first asylum ban in 2018, which like Biden’s ban stopped anyone coming into the country between the ports of entry from seeking protection. The ban was later ruled illegal.

The courts also struck down a 2019 rule barring asylum for anyone who traveled through another country before coming to the United States unless they had sought protection in that other nation.

Although immigration law experts say the Biden and Trump plans are similar, the Biden administration disagrees, pointing out that Biden’s plan allows more exceptions, including a provision that allows unaccompanied children to seek protection.

Biden’s plan also ends requirements that agents ask migrants seeking asylum if they fear returning to their homelands.

The idea of tying asylum to border crossing figures first was mentioned in the bipartisan Senate immigration package that Republicans rejected after Trump spoke out against it.

Aaron Reichlin-Melnick, policy director at the American Immigration Council, however, commented that the differences are not enough to keep Biden’s order.

“DHS and DOJ argue that this is legal because it only bans asylum to a slightly smaller portion of people who cross the border between ports of entry, and they argue that makes it distinct enough,” he said, adding that tying an asylum ban to border crossing numbers does not make it legal.

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