ACLU Readies Lawsuit Over Biden Border Control Measures Ahead of Expected Border Surge

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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 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 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.
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.”

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