WASHINGTON (AP) — A coalition of immigrant advocacy groups has sued Biden administration Wednesday on President Joe Biden’s recent directive effectively halting asylum applications at the southern border, saying it is little different 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 the Las Americas Immigrant Advocacy Center and RAICES — is the first test of the legality of Biden’s sweeping border action, which came after months of internal White House deliberations and is designed in part to deflect political attacks on the president over his handling of immigration.
“By issuing an asylum ban that is legally indistinguishable from the Trump ban that 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 the number of migrant encounters between ports of entry reaches 2,500 per day. It took effect immediately as the latest figures were much higher at around 4,000 per day.
The restrictions would be in effect until two weeks after the daily number of encounters is at or below 1,500 per day between ports of entry, below a seven-day average. But it is far from clear when the numbers will be this low; the last time was in July 2020 during the COVID-19 pandemic.
The order went into effect on June 5, and Biden administration officials have 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 push migrants to do — violates existing federal immigration law, among other things.
Biden invoked the same legal authority that the Trump administration used for its asylum ban, which falls under Section 212(f) of the Immigration and Nationality Act. This provision allows a president to restrict entry for certain migrants if their entry is deemed “detrimental” to the national interest.
Biden has repeatedly criticized Trump’s immigration policies during his campaign, and his administration claims his directive is different because it includes several exceptions for humanitarian reasons. For example, victims of human trafficking, unaccompanied minors and people with serious medical emergencies would not be subject to the limits.
“We stand by the legality of what we did,” Homeland Security Secretary Alejandro Mayorkas said on ABC’s “This Week” before the lawsuit was filed, saying he expected legal challenges. “We stand behind the value proposition.”
Under Biden’s directive, migrants who arrive at the border but do not express 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. These migrants could face penalties that could include a five-year ban from re-entering the US or even criminal charges.
Meanwhile, those who express fear or intent to seek asylum will be screened by a U.S. asylum officer, but at a higher level 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 sending people back to a country where they are likely to face torture.
