A new executive order from President Biden that sharply restricts asylum rights at the border already faces threats of lawsuits from those who successfully overturned similar efforts by former President Trump.
Biden’s Tuesday order borrows an idea included in bipartisan Senate negotiations. It largely cuts the right to seek asylum between ports of entry if border crossings exceed 2,500 people per day over a seven-day average.
Although the use of border metrics as a basis for denying access to the asylum process to those fleeing persecution is new, the main limitations on access to the system are not and have previously been eliminated in court.
“The law could not be clearer: no matter where you enter, you have to pass asylum screening. That is why this policy of cutting off asylum to people who enter between ports is illegal. And that’s why it was illegal when Trump tried to do it,” said Lee Gelernt, a lawyer for the American Civil Liberties Union (ACLU) who has led previous litigation over Trump-era asylum rules and has vowed to challenge this rule as well.
While asylum seekers can apply if they show up at a port of entry, the law also allows them to do so between ports of entry after crossing the border.
The law was designed this way to take into account that ports can be hundreds of kilometers away or difficult to access when someone flees danger.
But now Biden is targeting that method as the number of migrants crossing between ports of entry to seek asylum is rising. Migrants, after declaring asylum, are then funneled into a system with a huge backlog that leaves them waiting for years to determine whether they will be granted protection.
“The basic legal tension is that the right to asylum is clearly defined in federal law enacted by Congress. And it is quite clear that anyone who is physically present in the United States has the legal right to seek asylum,” said César Cuauhtémoc García Hernández, professor of immigration law at The Ohio State University College of Law.
“Congress in 1980 laid out the basic legal hurdle that the Trump administration struggled to overcome, and I think the Biden administration will struggle to overcome, which is that once a person is on the territory of the United States, Congress says, it doesn’t matter How did this person get here? It doesn’t matter if they have permission from the federal government to be here. They have a legal right to seek asylum.”
Biden’s proclamation and a joint rule from the Department of Homeland Security (DHS) and the Department of Justice (DOJ) have drawn widespread criticism of Congress for failing to act to change asylum law – arguing that the process it establishes is simply unworkable with modern migratory flows where people increasingly seek protection.
“For the vast majority of people in immigration proceedings, current laws make it impossible to quickly grant protection to those who need it and quickly remove those who do not establish a legal basis for remaining in the United States,” Biden wrote in the order.
Meanwhile, departments have complained that the years-long delay in applying for asylum means they “cannot predictably and quickly bring consequences to the majority of non-citizens who cross the border without a legal basis for staying. This inability to make timely decisions and consequences in a predictable manner further increases the incentives for migrants to make the dangerous journey.”
Trump’s asylum bans
In 2018, the Trump administration introduced its first asylum ban, which also prohibited anyone entering the U.S. between ports of entry from seeking protections, but it was banned and a judge later ruled that the rule was illegal.
A 2019 rule that banned asylum from anyone traveling through another country en route to the border without first seeking protection there was also later overturned by the courts.
Immigration law experts and the Biden administration disagree about the extent to which the nuances of the Biden plan distinguish it from Trump’s 2018 asylum ban.
Biden’s plan offers more exceptions than Trump’s policy, including allowing unaccompanied children to seek protection. And while it allows migrants who actively apply to seek asylum – called the “scream test” – it does away with the requirement for agents to ask whether a migrant is afraid of being returned to their country.
The other main difference is linking the right to asylum to border crossing numbers. This idea was first floated in the Senate’s bipartisan immigration package, which was quickly rejected by House Republicans after Trump spoke out against the proposal. That plan would have limited asylum when border crossings exceeded 4,000.
But Aaron Reichlin-Melnick, policy director at the American Immigration Council, said those changes are not substantial enough to protect the order.
“DHS and DOJ argue that this is legal because it only prohibits asylum to a slightly smaller portion of people who cross the border between ports of entry, and they argue that this makes it sufficiently distinct,” he said, but that does little to solve a problem. law that allows migrants to seek asylum regardless of how they entered the country.
He also rejected the idea that linking asylum to border crossing numbers provided any legal coverage.
“I don’t think you can put a number to the right,” Reichlin-Melnick said.
García Hernández said the administration would also have difficulty arguing for implementing the rule and taking it into effect immediately without first going through a notice and comment period, something litigants could challenge under the Administrative Procedures Act.
“Simply saying, ‘Well, there have been more people applying for asylum in the last three and a half years than normally happens’ doesn’t lead you to think ‘why couldn’t you wait 60 or 90 days?’ allow the public to comment and then take their feedback into account?’” he said.
Warding off threats
Government officials rejected the immediate threat of legal action.
“I think we’re used to being litigated, frankly, from both sides of the political spectrum for pretty much any action we take in this space, and this is just another sign that there is no lasting solution to the challenges we face without Congress being doing its job,” a senior administration official told reporters on Tuesday.
But for Gelernt, the repeated comments chastising Congress for its inability to act underscore that the administration does not have a solid legal foundation.
“The bottom line is that we are challenging this executive order as an excess of executive authority under laws passed by Congress. And I think the administration has recognized that it’s on shaky legal ground, and that’s why it tried to do it through Congress – as you know, that blew up – but we don’t think the executive can do this unilaterally,” he said.
Although immigration groups project confidence in their ability to challenge the law, the process will be lengthy.
“Regardless of whether this order is overturned or not, it is in effect today. And there will be people who will be turned away and denied the right to seek asylum under these orders in those days and weeks before any court has the opportunity to rule on this,” Reichlin-Melnick said.
“This is having an immediate effect.”
This story originally appeared on thehill.com read the full story
