The American Civil Liberties Union filed a lawsuit Wednesday challenging President Biden’s decision to close the southern border to nearly all migrants seeking asylum in the United States.
The measure marks the first legal challenge to an order the Biden administration hopes will reduce the number of illegal border crossings and neutralize one of the president’s most serious political weaknesses.
The ACLU said in a statement that the asylum ban, which took effect a week ago, violates legal protections for people seeking protection in the United States.
Biden’s order would block migrants who cross the US-Mexico border without authorization from applying for asylum. President Donald Trump tried to block immigration in a similar way in 2018 but was blocked in federal court.
“Asylum law couldn’t be clearer: People must be able to seek protection regardless of their place of entry. That’s why the courts struck down Trump’s nearly identical refugee ban, and it’s certainly why the Biden administration has acknowledged that it may not be able to do so through unilateral executive order,” said Lee Gerentz, an attorney with the American Civil Liberties Union (ACLU), which has challenged several immigration policies under the Biden and Trump administrations.
The lawsuit, joined by groups including the National Center for Immigrant Justice and the Center for Gender and Refugee Studies, was filed in federal court in Washington, D.C. The suit challenges the executive order in general as well as some of the more specific restrictions the administration imposed, such as giving immigrants only four hours to find an attorney if they want to argue for an exception to the asylum ban.
In a statement after the lawsuit was filed, the White House vowed to “continue to enforce our immigration laws” and remove “those who have no lawful basis to be in the United States.” Questions about the lawsuit were referred to the Justice Department, which declined to comment.
The restrictions will only be lifted if the number of illegal border crossings falls below 1,500 for seven consecutive days and remains that way for two weeks. This figure has not been that low in recent years, with around 10,000 illegal border crossings per day in December. More recently, the figure has hovered around 3,000 per day.
There are exceptions to the order, including for unaccompanied children and victims of human trafficking, and people can still schedule asylum appointments through the Customs and Border Protection app.
Migrants who fear returning home can seek protection in the US, but they must do so voluntarily, without being asked — a practice known as the “shout test” — and must use other programs outside of asylum that are much more difficult to get through and that most don’t qualify for.
But many people seeking asylum cross the border illegally and then turn themselves in to the Border Patrol, often only to be released into the U.S. to await court appearances that can take years.
Biden’s executive order aims to stop that from happening by allowing border agents to turn back migrants more quickly and ending long-standing guarantees that give anyone who sets foot on U.S. soil the right to seek safe haven.
Immigration activists and some Democratic lawmakers have criticized the effort.
“This asylum ban, like those under the Trump administration, will fail to address the challenges at the border,” said Sen. Alex Padilla, D-Calif. “It will prevent legitimate asylum seekers from seeking safety and return them to dangerous situations.”
Republicans have used illegal immigration as an attack against Biden, and in some cases have sought to thwart his efforts to address the issue. Egged on by Trump, Republicans in February blocked a bipartisan bill that would have put in place the most significant border restrictions Congress has considered in years.
