Biden Faces Lawsuit Over New Border Asylum Crackdown

WAshington – A coalition of immigrant advocacy groups sued the Biden administration on Wednesday over President Joe Biden recent directive that effectively halts asylum claims at the southern border, saying it differs little from a similar Trump administration measure that was blocked by the courts.

The process — presented by the American Civil Liberties Union and others on behalf of the Las Americas Immigrant Advocacy Center and the Refugee and Immigrant Center for Education and Legal Services, or RAICES — is the first test of the legality of Biden’s broad crackdown at the border, which came after months of internal White House deliberations and was designed in part to deflect political attacks on the president for his handling of immigration.

“By enacting an asylum ban that is legally indistinguishable from the Trump ban that we successfully blocked, we are left with no choice but to file this lawsuit,” said Lee Gelernt, a ACLU attorney.

The order Biden issued last week would limit asylum processing once encounters with migrants between ports of entry reach 2,500 per day. It took effect immediately because the latest numbers were much higher, about 4,000 per day.

Restrictions would come into force up to two weeks after the number of daily encounters is at or below 1,500 per day, below the seven-day average. But it’s unclear when the numbers will drop so much; the last time was in July 2020, during the COVID-19 pandemic.

The order took effect on June 5, and Biden administration officials said they expected record levels of deportations.

But advocates argue that suspending asylum for migrants who don’t arrive at a designated port of entry — something the Biden administration is trying to force migrants to do — violates existing federal immigration law, among other concerns.

“The United States has long sheltered refugees seeking refuge from persecution. The 1980 Refugee Act enshrined this national commitment in law. While Congress has placed some limitations on the right to seek asylum over the years, it has never allowed the Executive Branch to categorically prohibit asylum based on where a noncitizen enters the country,” the groups wrote in the complaint filed Wednesday. .

Biden invoked the same legal authority used by the Trump administration for its asylum ban, which falls under Section 212(f) of the Immigration and Nationality Act. This provision allows a president to limit the entry of certain migrants if their entry is considered “harmful” to the national interest.

During the campaign, Biden repeatedly criticized former President Donald Trump’s immigration policies, and his administration argues that his directive is different because it includes several exemptions for humanitarian reasons. For example, victims of human trafficking, unaccompanied minors, and those with serious medical emergencies would not be subject to the limits.

“We defend the legality of what we did,” Homeland Security Secretary Alejandro Mayorkas said on ABC’s “This Week” before the lawsuit was filed, saying he anticipated legal challenges.

In the lawsuit, immigrant advocacy groups argue that the exceptions are “extremely limited.”

The White House referred questions about the lawsuit to the Justice Department, which declined to comment. White House spokesman Angelo Fernández Hernández defended Biden’s order, saying in a statement that it was necessary after congressional Republicans blocked a bipartisan agreement that “would have provided critical resources, statutory changes and additional personnel to the border”.

Under Biden’s directive, migrants who arrive at the border but do not express fear of returning to their home countries will be subject to immediate removal from the United States, within a matter of days or even hours. These migrants could face punishments that could include a five-year ban on re-entry into the US or even criminal prosecution.

Advocates argued in the lawsuit that requiring migrants to express fear — often called fear-mongering — puts the burden on migrants.

“In practice, non-citizens who have just crossed the border and may be hungry, exhausted, sick or traumatized after fleeing persecution in their home countries and danger in Mexico, are likely to be intimidated by armed agents and in Border Patrol uniforms, and are therefore unlikely to ‘express’ their fear of returning,” the lawsuit says.

Meanwhile, those who express fear or intention to seek asylum will be screened by a US asylum officer, but to a higher standard than currently used. If they pass the test, they can seek more limited forms of humanitarian protection, including the United Nations Convention against Torture, which prohibits the return of people to a country where they are likely to face torture.

Migrants who use an app called CBP One while in Mexico to schedule an appointment to present themselves at an official border crossing point to seek entry are exempt from these newer, stricter asylum restrictions. The app is part of the administration’s efforts to encourage migrants to use their preferred routes to try to enter the country, rather than simply crossing the border and meeting a Border Patrol agent and turning themselves in.

But in the process, advocates detailed a list of complaints about the app. For example, many migrants do not have a cellular data plan or the Wi-Fi access necessary to use it. Some migrants do not speak one of the languages ​​supported by the application, while other migrants are illiterate. And there are only a limited number of places available each day compared to the number of migrants wanting to enter the country.

“As a result, countless asylum seekers were forced to wait indefinitely in poor conditions in Mexico in hopes of obtaining scarce appointments,” the lawsuit says.

The other groups that filed the lawsuit along with the ACLU were the National Immigrant Justice Center, the Center for Gender and Refugee Studies, Jenner & Block LLP, the ACLU of the District of Columbia and the Texas Civil Rights Project.