A coalition of immigrant advocacy groups sued the Biden administration on Wednesday over President Joe Biden’s recent directive that in effect halts asylum claims at the southern border, saying it differs little from a similar move during the Trump administration that was blocked by the courts.
The lawsuit – filed by the American Civil Liberties Union and others on behalf of Las Americas Immigrant Advocacy Center and Raices – is the first test of the legality of Biden’s sweeping crackdown on the border, which came after months of internal White House deliberations and is designed in part to deflect political attacks against the president on his 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.
The order Biden issued last week would limit asylum processing once encounters with migrants between ports of entry reach 2,500 a day. It went into effect immediately because the latest figures were far higher, at about 4,000 daily.
The restrictions would be in effect until two weeks after the daily encounter numbers are at or below 1,500 a day between ports of entry, under a seven-day average. But it is far from clear when the numbers would dip that low; the last time was in July 2020 during the Covid-19 pandemic.
The order went into effect on 5 June, and Biden administration officials have said they expected record levels 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 push migrants to do – violates existing federal immigration law, among other concerns.
Biden invoked the same legal authority used by the Trump administration for its asylum ban, which comes under Section 212(f) of the Immigration and Nationality Act. That provision allows a president to limit entries for certain migrants if their entry is deemed “detrimental” to the national interest.
Biden has repeatedly criticized Trump’s immigration policies as he campaigns, 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 severe medical emergencies would not be subject to the limits.
“We stand by the legality of what we have done,” the homeland security secretary, Alejandro Mayorkas, said on ABC’s This Week before the lawsuit was filed, saying he anticipated legal challenges. “We stand by the value proposition.”
Under Biden’s directive, migrants who arrive at the border but do not express a 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. Those migrants could face punishments that could include a five-year bar from re-entering the US or even criminal prosecution.
Meanwhile, those who express fear or an intention to seek asylum will be screened by a US asylum officer but at a higher standard than currently used. If they pass the screening, they can pursue more limited forms of humanitarian protection, including the UN Convention Against Torture, which prohibits returning people to a country where they are likely to face torture.
