--- title: ACLU Readies Lawsuit Over Biden's New Border Control Measures description: “We plan to sue,” an ACLU lawyer tells TIME, as Biden prepares to install new rules limiting access to asylum at the border as Title 42 ends. canonical: https://time.com/6278812/border-title-42-aclu-lawsuit-asylum/ author: Brian Bennett article:opinion: false article:content_tier: free article:published_time: 2023-05-10T21:32:29.000Z article:modified_time: 2026-05-11T04:48:55.812Z article:section: Politics og:title: ACLU Readies Lawsuit Over Biden's New Border Control Measures og:description: “We plan to sue,” an ACLU lawyer tells TIME, as Biden prepares to install new rules limiting access to asylum at the border as Title 42 ends og:url: https://time.com/6278812/border-title-42-aclu-lawsuit-asylum/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt6206a03b345a5e09/698a3cc509208f7d7741a572/migrants-title-42-100.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 2400 og:image:height: 1350 og:image:alt: Migrants gather along the U.S. Mexico border near San Diego before the lifting of Tile 42 og:type: article twitter:card: summary_large_image twitter:title: ACLU Readies Lawsuit Over Biden's New Border Control Measures twitter:description: “We plan to sue,” an ACLU lawyer tells TIME, as Biden prepares to install new rules limiting access to asylum at the border as Title 42 ends twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt6206a03b345a5e09/698a3cc509208f7d7741a572/migrants-title-42-100.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # ACLU Readies Lawsuit Over Biden Border Control Measures Ahead of Expected Border Surge > Sponsored content. 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Brief is TIME's Washington newsletter, written by senior correspondent Philip Elliott. It explains the politics, personalities and power dynamics behind the headlines, three times a week. It reaches 85,000 subscribers with a 37.0% open rate as of August 2026. #### Where can I get analysis of Washington politics by email? D.C. Brief is TIME's free Washington politics newsletter, available at time.com/newsletters. It is written by a TIME senior correspondent who covers the capital full time. #### Who writes TIME's D.C. Brief? Philip Elliott, a senior correspondent at TIME, writes D.C. Brief. #### Is D.C. Brief free? Yes. D.C. Brief is free at time.com/newsletters.  by [Brian Bennett](https://time.com/author/brian-bennett/)  ## Brian Bennett Bennett is the senior White House correspondent at TIME. May 10, 2023 9:32 PM UTC  U.S. Border Patrol organize migrants after they gathered between primary and secondary border fences as the United States prepares to lift COVID-19 era Title 42 restrictions that have blocked migrants at the U.S.-Mexico border from seeking asylum since 2020 near San Diego, Calif., on May 9, 2023. U.S. Border Patrol organize migrants after they gathered between primary and secondary border fences as the United States prepares to lift COVID-19 era Title 42 restrictions that have blocked migrants at the U.S.-Mexico border from seeking asylum since 2020 near San Diego, Calif., on May 9, 2023. Mike Blake—Reuters  by [Brian Bennett](https://time.com/author/brian-bennett/)  ## Brian Bennett Bennett is the senior White House correspondent at TIME. May 10, 2023 9:32 PM UTC President Biden’s new rules limiting access to asylum at the border will be challenged in court, according to a senior lawyer at the American Civil Liberties Union. That legal challenge, if successful, could freeze a key part of the federal government’s effort to head off and slow what could be a [crushing number of people](https://time.com/6277557/immigration-title-42-border-crisis-biden/) presenting themselves to Border Patrol agents between ports of entry on the Southwest Border. Tens of thousands of people are expected to try to cross the border in the next few weeks after the pandemic-era practice of turning most people away at the border without hearing asylum claims ends at 11:59 pm on May 11. Smugglers, Biden administration officials say, have been telling migrants for months they will have a better chance of being admitted into the US when those Title 42 public health authorities expire with the formal end of the COVID-19 public health emergency. To deter people from crossing, US immigration officials have designed [new, more restrictive asylum rules](https://time.com/6278656/biden-title-42-migration-border-crisis/) to snap into place just as the use of Title 42 expires. “We plan to sue,” Katrina Eiland, an ACLU attorney based in San Francisco, tells TIME. For the past several weeks, the organization has been analyzing the Biden Administration’s asylum policies and drafting legal documents in preparation for the federal response to the end of Title 42, Eiland says. Those new asylum procedures were published in the federal register on Wednesday. The 447-page rule tells people they are likely to be rejected if they seek asylum after having passed through another country without requesting protection. Asylum candidates are also likely to be rejected if they did not use a new U.S. Customs and Border Protection smartphone app, called CBP One, to make an appointment to request asylum at a U.S. port of entry. Officials with several immigrant rights organizations believe the new rules are overly broad and will lead to thousands of people who would otherwise qualify for protection in the U.S. to be denied asylum without an asylum officer hearing their case.  Migrants cross the Rio Bravo on an inflatable mattress into the United States from Matamoros, Mexico, on May 9, 2023. Fernando Llano—AP The ACLU believes the new rule violates a section of federal law that describes how the U.S. evaluates asylum cases, Eiland says, and doesn’t do enough to separate asylum seekers who have strong claims for protection from those who don’t. “We think it’s illegal under the asylum laws and is arbitrary and capricious for a number of reasons and that it will do grave harm and expose vulnerable asylum seekers to danger,” Eiland says. That law requires an applicant to establish for an asylum officer that they have been persecuted because of their race, religion, nationality, membership in a particular social group, or political opinion. An individual may seek asylum after arriving in the United States “whether or not at a designated port of arrival,” the law states. During the Trump administration, the ACLU and other organizations sued and blocked two efforts to restrict access to asylum. In those cases, a U.S. district court judge in Northern California agreed the Trump-era changes were too onerous and the Ninth Circuit upheld those rulings. “The Trump asylum bans penalized people who didn’t apply for asylum in countries they transited through before arriving in the U.S. and for entering the country without inspection,” says Eiland. “This puts both of those requirements together in one rule.” Kate Melloy Goettel, legal director of litigation at the American Immigration Council, says the new standard creates “a huge obstacle for asylum seekers” and “turns asylum law on its head.” The CBP One smartphone app, where migrants are urged to register for a time to appear at a point of entry to have their case evaluated, is glitchy, isn’t available in enough languages, and “is not ready for prime-time,” Goettel says. The new law creates what is called a “rebuttable presumption” of denial if a person crosses the border between ports of entry or didn’t try to claim asylum in a country they transited through. “That is not what our asylum law says. People can seek asylum at a port or entry or between ports of entry under our domestic law,” Goettel says. Asked on Wednesday what Biden’s back up plan is if the asylum rule gets blocked in court, White House Press Secretary Karine Jean-Pierre told reporters on Air Force One, “I’m not going to get into the legalities here. That’s not something that I do. Certainly, if it gets there, that’s something the Department of Justice will deal with.” Biden spoke with Mexican President Andrés Manuel López Obrador on the phone Tuesday about the changes to U.S. immigration procedures at the border. Mexico has agreed to take migrants back into Mexico if they’ve been turned away. Biden recently deployed more troops to support Border Patrol and is setting up centers in Colombia and Guatemala where migrants can check if they qualify for entry to the U.S. before traveling to the border. Asked on Tuesday if the US is ready for a surge of people coming to the border in the coming weeks, Biden said, “It’s going to be chaotic for a while.” ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/6278812/border-title-42-aclu-lawsuit-asylum/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/6278812/border-title-42-aclu-lawsuit-asylum/"},"headline":"ACLU Readies Lawsuit Over Biden Border Control Measures Ahead of Expected Border Surge","datePublished":"2023-05-10T21:32:29.000Z","dateModified":"2026-05-11T04:48:55.812Z","description":"“We plan to sue,” an ACLU lawyer tells TIME, as Biden prepares to install new rules limiting access to asylum at the border as Title 42 ends","url":"https://time.com/6278812/border-title-42-aclu-lawsuit-asylum/","keywords":["Biden Administration","Immigration"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt6206a03b345a5e09/698a3cc509208f7d7741a572/migrants-title-42-100.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Brian Bennett","jobTitle":"Bennett is the senior White House correspondent at TIME.","url":"https://time.com/author/brian-bennett/"}],"articleSection":"Politics","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt6206a03b345a5e09/698a3cc509208f7d7741a572/migrants-title-42-100.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"Migrants gather along the U.S. Mexico border near San Diego before the lifting of Tile 42","caption":"U.S. Border Patrol organize migrants after they gathered between primary and secondary border fences as the United States prepares to lift COVID-19 era Title 42 restrictions that have blocked migrants at the U.S.-Mexico border from seeking asylum since 2","creditText":"Mike Blake—Reuters","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"/section/politics/","name":"Politics"}},{"@type":"ListItem","position":2,"item":{"@id":"/tag/biden-administration/","name":"Biden Administration"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/6278812/border-title-42-aclu-lawsuit-asylum/","name":"ACLU Readies Lawsuit Over Biden Border Control Measures Ahead of Expected Border Surge"}}]}] ```