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A coalition of immigrant advocacy groups sued the Biden administration on Wednesday over President Joe Biden’s recent directive that effectively halts asylum claims at the southern border, saying it differs little 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 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 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 per 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 those daily encounter numbers are at or below 1,500 per day, under a seven-day average. But it’s 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 June 5, and Biden administration officials have 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 — which the Biden administration is trying to push migrants to do —- violates existing federal immigration law, among other concerns.
“The United States has long sheltered refugees seeking a haven from persecution. The 1980 Refugee Act enshrined that national commitment in law. While Congress has placed some limitations on the right to seek asylum over the years, it has never permitted the Executive Branch to categorically ban 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 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.
As he campaigns, Biden has 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 severe medical emergencies would not be subject to the limits.
A spokesperson for the Department of Homeland Security declined to comment on the lawsuit but said: “The Securing the Border rule is lawful, is critical to strengthening border security, and is already having an impact. The challenged actions remain in effect, and we will continue to implement them.”
In the lawsuit, the immigrant advocacy groups argue that exceptions are “extremely limited.”
The White House referred questions about the lawsuit to the Justice Department, which declined to comment. White House spokesperson Angelo Fernández Hernández defended Biden’s order, saying in a statement 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 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 reentering the U.S. or even criminal prosecution.
Advocates argued in the lawsuit that requiring migrants to express fear — often called manifesting fear — puts the onus on the migrants.
“In practice, noncitizens who have just crossed the border, and may be hungry, exhausted, ill, or traumatized after fleeing persecution in their home countries and danger in Mexico, are likely to be intimidated by armed, uniformed Border Patrol officers, and are thus unlikely to ‘manifest’ their fear of return,” the lawsuit reads.
Meanwhile, those who express fear or an intention to seek asylum will be screened by a U.S. 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 U.N. Convention Against Torture, which prohibits returning people to a country where they’re likely to face torture.
Migrants who use an app called CBP One while they’re in Mexico to schedule an appointment to present themselves at an official border crossing point to seek entry are exempt from these newer, tougher asylum restrictions. The app is part of the administration’s efforts to encourage migrants to use its preferred pathways to try to enter the country, instead of simply crossing the border and finding a Border Patrol agent and turning themselves in.
But in the lawsuit, advocates detailed a list of complaints about the app. For example, many migrants don’t have a cellular data plan or the Wi-Fi access needed to use it. Some migrants don’t speak one of the languages the app supports, while other migrants are illiterate. And there’s only a limited number of slots available every day compared with the number of migrants who want to come into the country.
“As a result, countless asylum seekers have been forced to wait indefinitely under precarious conditions in Mexico in the hope of obtaining scarce appointments,” the lawsuit reads.
The other groups bringing the lawsuit alongside the ACLU were the National Immigrant Justice Center, Center for Gender & Refugee Studies, Jenner & Block LLP, ACLU of the District of Columbia, and Texas Civil Rights Project.
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