WASHINGTON (AP) — A coalition of immigration organizations sued the Biden administration on Wednesday over its recent order that effectively halts asylum applications at the southern border, saying it was little different from a similar move by the Trump administration that was blocked by the courts.
The lawsuit – filed 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 (RAICES) – is the first test of the legality of Biden’s sweeping border crackdown, which came after months of internal White House deliberations and is aimed in part at fending off political attacks against the president over his handling of immigration.
“By passing an asylum ban that is legally indistinguishable from the ban Trump successfully blocked, we were left with no choice but to file this lawsuit,” said Lee Gelernt, an ACLU attorney.
The order, which Biden issued last week, would limit asylum processing once the number of migrant encounters between ports of entry reaches 2,500 per day. It took effect immediately, as recent numbers were far higher, at about 4,000 daily.
The restrictions would remain in place until two weeks after the number of daily encounters falls below a seven-day average of 1,500 per day or less. However, it is far from clear when the numbers would drop that far; the last time was in July 2020 during the COVID-19 pandemic.
The decree took effect on June 5, and Biden administration officials said they expected a record number of deportations.
But advocates argue that suspending asylum for migrants who do not arrive at a designated port of entry – which the Biden administration is trying to pressure migrants to do – violates existing federal immigration law, among other things.
“The United States has long provided protection to refugees seeking protection from persecution. The Refugee Act of 1980 enshrined this national obligation in law. Although Congress has enacted some restrictions on the right to asylum over the years, it has never authorized the executive branch to fundamentally prohibit asylum based on where a noncitizen enters the country,” the groups wrote in the complaint filed Wednesday.
Biden relied on the same legal basis that the Trump administration used for its asylum ban: Section 212(f) of the Immigration and Nationality Act. This provision allows a president to restrict the entry of certain migrants if their entry is deemed “detrimental” to the national interest.
During the election campaign, Biden repeatedly criticized former President Donald Trump’s immigration policies. His administration argues that his policy is different because it provides several exceptions for humanitarian reasons. Victims of human trafficking, unaccompanied minors and people with grave medical emergencies, for example, would not be affected by the restrictions.
A Department of Homeland Security spokesman declined to comment on the lawsuit, but said: “The border security rule is lawful, critical to strengthening border security, and is already having an impact. The challenged measures remain in effect and we will continue to implement them.”
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 it was necessary after Republicans in Congress blocked a bipartisan agreement that would have “provided critical resources, legislative changes and additional personnel to the border.”
Under Biden’s directive, migrants who arrive at the border but express no fear of returning to their home country will be deported from the United States within days or even hours. These migrants face penalties, including a five-year ban on entering the United States or even criminal prosecution.
In the lawsuit, lawyers argued that responsibility for migrants’ expression of fear – often referred to as manifesting fear – was being shifted onto the migrants.
“In practice, noncitizens 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, uniformed Border Patrol agents and are therefore unlikely to ‘manifest’ their fear of returning,” the lawsuit states.
Those who express fear or seek asylum will be screened by a U.S. asylum officer, but under more stringent standards than currently apply. If they pass the screening, they may be eligible for more restricted forms of humanitarian protection, including the U.N. Convention against Torture, which prohibits the return of people to countries where they would face torture.
Migrants who exploit an app called CBP One while in Mexico to schedule an appointment and show up at an official border crossing are exempt from these new, stricter asylum restrictions. The app is part of the administration’s effort to encourage migrants to exploit its preferred routes to enter the country rather than simply crossing the border, finding a border patrol agent and turning themselves in.
But in the lawsuit, lawyers listed a list of complaints about the app. For example, many migrants do not have a cell phone plan or the Wi-Fi access needed to exploit it. Some migrants do not speak any of the languages supported by the app, while others cannot read or write. And compared to the number of migrants seeking to enter the country, there are only a restricted number of spots available each day.
“As a result, countless asylum seekers have been forced to wait indefinitely in Mexico under precarious conditions in the hope of getting one of the rare appointments,” the lawsuit states.
In addition to the ACLU, other groups filing the lawsuit include the National Immigrant Justice Center, the Center for Gender & Refugee Studies, Jenner & Block LLP, the ACLU of the District of Columbia, and the Texas Civil Rights Project.
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AP writer Alanna Durkin Richer contributed.
