Biden hit with first lawsuit over new asylum rules at the border

A coalition of pro-immigrant organisations filed a first lawsuit against the Biden administration on Wednesday, citing similarities between President Biden’s latest ruling and a similar action taken by the Trump administration that was overturned by the courts. The instruction essentially stops asylum requests at the southern border.

The lawsuit is the first attempt to determine whether Biden’s extensive crackdown on immigration is lawful. It was implemented after months of internal White House discussions and is partly intended to deflect political criticism of the president for his immigration policies. It was filed by the American Civil Liberties Union and others on behalf of Las Americas Immigrant Advocacy Centre and the Refugee and Immigrant Centre for Education and Legal Services, or RAICES.

“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,” ACLU attorney Lee Gelernt stated.

Once 2,500 interactions with migrants between ports of entry are made each day, the order that Biden issued last week will restrict the processing of asylum claims. The most recent data, at almost 4,000 per day, were significantly higher. Therefore, it went into effect right away.

Under a seven-day average, the limits would remain in place for two weeks once those daily encounter counts are at or below 1,500 each day. The last time the numbers fell that low was in July 2020 during the COVID-19 epidemic, so it’s far from obvious when they would do so again.

Legal Challenges and Controversies

The order became effective on June 5, and the Biden administration officials anticipate that it will result in record deportations. However, advocates contend that restricting asylum for migrants who do not arrive at a specified port of entry, as the Biden administration is encouraging, goes against existing federal immigration law and raises 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 stated in the petition filed Wednesday.

Biden claimed the same legal authority as the Trump administration for its asylum prohibition, which is found in Section 212(f) of the Immigration and Nationality Act. That provision empowers the president to restrict entry for specific migrants if their entry is deemed “detrimental” to the national interest.

While campaigning, Biden has frequently spoken out against former President Donald Trump’s immigration policies. His administration argues that his directive is distinct because it incorporates numerous exceptions for humanitarian reasons. For instance, individuals who are victims of human trafficking, unaccompanied minors, and those with serious medical emergencies would not be affected by the restrictions. A representative for the Department of Homeland Security declined to comment on the complaint, but stated that  “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.”

The immigration advocacy groups say in their lawsuit that exceptions are “extremely limited.”

The White House addressed all queries on the complaint to the Justice Department, which declined to comment. Angelo Fernández Hernández, a White House spokesperson, justified Biden’s order, saying it was necessary after congressional Republicans thwarted a bipartisan accord that “would have provided critical resources, statutory changes, and additional personnel to the border.”

Migrants arriving at the border without expressing fear of returning to their home countries will be promptly removed from the United States, possibly within days or hours. These migrants could potentially face penalties such as a five-year reentry bar or even criminal prosecution.

Advocates argued in a lawsuit that requiring migrants to demonstrate fear places undue pressure on them. The lawsuit stated that migrants who have recently crossed the border, and may be hungry, exhausted, ill, or traumatized after escaping persecution in their home countries and danger in Mexico, are likely to feel intimidated by armed, uniformed Border Patrol officers and therefore may not be able to express their fear of returning.

Meanwhile, individuals expressing fear or a desire to seek asylum will undergo screening by a U.S. asylum officer. The screening process will be held to a higher standard than the current one. If they pass the screening, they may pursue more limited forms of humanitarian protection, such as the U.N. Convention Against Torture, which prohibits the return of individuals to a country where they are likely to face torture.

Migrants who use an app called CBP One while in Mexico to schedule an appointment to present themselves at an official border crossing point in order to seek entry are not subject to the new, stricter asylum restrictions. The app is part of the administration’s efforts to encourage migrants to use its preferred pathways to enter the country, rather than simply crossing the border and presenting themselves to a Border Patrol agent.

The lawsuit outlined several complaints about the app. For instance, many migrants lack a cellular data plan or access to Wi-Fi, preventing them from using it. Some migrants cannot use the app because it doesn’t support their language, while others are illiterate.

Additionally, there are only a limited number of daily slots available compared to the number of migrants seeking entry, leading to indefinite waits in Mexico. The ACLU, along with the National Immigrant Justice Center, Center for Gender & Refugee Studies, Jenner & Block LLP, ACLU of the District of Columbia, and Texas Civil Rights Project, is bringing the lawsuit.

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