A coalition of immigrant advocacy groups, led by the American Civil Liberties Union (ACLU), filed a lawsuit against the Biden administration on Wednesday. The suit challenges President Joe Biden’s recent directive that effectively halts asylum claims at the southern border, arguing it closely resembles a similar move during the Trump administration that was previously blocked by the courts.
The lawsuit, filed on behalf of Las Americas Immigrant Advocacy Center and RAICES, marks the first legal test of Biden’s comprehensive crackdown on border policies. The new measures were implemented after months of internal White House deliberations and aim, in part, to deflect political criticism of Biden’s handling of immigration.
“By enacting an asylum ban that is legally indistinguishable from the Trump ban we successfully blocked, we were left with no choice but to file this lawsuit,” said Lee Gelernt, an attorney for the ACLU.
Key Details of the Directive
The directive, issued last week, limits asylum processing when encounters with migrants between ports of entry exceed 2,500 per day. The restrictions took immediate effect as the latest figures showed encounters at about 4,000 daily.
The restrictions will remain until two weeks after daily encounters average 1,500 per day or fewer between ports of entry. However, it is uncertain when numbers will fall to that level; the last instance was in July 2020 during the COVID-19 pandemic.
The order, effective since June 5, is expected to result in record levels of deportations according to Biden administration officials. However, advocates argue that suspending asylum for migrants who don’t arrive at designated ports of entry violates existing federal immigration law among other concerns.
Legal and Humanitarian Concerns
Biden invoked the same legal authority used by the Trump administration under Section 212(f) of the Immigration and Nationality Act, which allows a president to limit entries of certain migrants if their entry is deemed “detrimental” to the national interest.
Despite criticizing Trump’s immigration policies during his campaign, Biden’s administration claims the directive is different due to several exemptions for humanitarian reasons. For example, victims of human trafficking, unaccompanied minors, and those with severe medical emergencies are not subject to the limits.
“We stand by the legality of what we have done,” Homeland Security Secretary Alejandro Mayorkas said on ABC’s “This Week” before the lawsuit was filed. He anticipated legal challenges but defended the directive’s value proposition.
Under the new directive, migrants who arrive at the border and do not express a fear of returning to their home countries will be subject to immediate removal from the United States, potentially within days or even hours. These migrants could face punishments, including a five-year bar from reentering the U.S. or criminal prosecution.
Migrants who express fear or an intention to seek asylum will be screened by a U.S. asylum officer under a higher standard than currently used. If they pass the screening, they can pursue more limited forms of humanitarian protection, such as those provided under the U.N. Convention Against Torture, which prohibits returning people to countries where they are likely to face torture.