ACLU Sues Biden Administration Over ‘Unilateral’ Ban On Asylum Seekers

The American Civil Liberties Union sued the Biden administration on Wednesday after the White House said it would effectively shut out asylum seekers who attempt to cross the country’s southern border from Mexico.

President Joe Biden unveiled the plans earlier this month, after chastising Republicans for tanking a bipartisan border deal in February. The new executive action prohibits migrants along the border from being granted asylum when the system is “overwhelmed,” as defined by the White House under the new rules.

The White House had been working on the move for months, as immigration policy is sure to play a central role in the November election.

The ACLU, which sued alongside other civil rights groups, compared Biden’s actions to those of his predecessor, former President Donald Trump, which were ultimately blocked in federal court.

“We were left with no alternative but to sue,” Lee Gelernt, the deputy director of the ACLU’s Immigrants Rights Project, said in a statement. “The administration lacks unilateral authority to override Congress and bar asylum based on how one enters the country, a point the courts made crystal clear when the Trump administration unsuccessfully tried a near-identical ban.”

The White House rejected those assertions in a statement on Wednesday night, reiterating that the president had no choice after the GOP stymied efforts to up border security and funding.

“The Biden-Harris administration took these actions, within its authorities, because border encounters remain too high and after Congressional Republicans twice voted against a historic bipartisan border security agreement that would have provided critical resources, statutory changes and additional personnel to the border,” a White House spokesperson said in a statement. “The administration will continue to enforce our immigration laws — those without a legal basis to remain in the United States will be removed.”

The new rules, which went into effect last week, limit the processing of new asylum applicants as soon as the number of average migrant encounters at the southern border tops 2,500 a day. At the time of the order, that figure was much higher, at about 4,000 a day, according to the Associated Press. At times, including last December, there were more than 10,000 encounters each day.

The ACLU said in its suit Wednesday the country had long “sheltered refugees seeking a haven from persecution.”
The ACLU said in its suit Wednesday the country had long “sheltered refugees seeking a haven from persecution.” FREDERIC J. BROWN/AFP via Getty Images

The temporary bans can only be lifted two weeks after average numbers of migrant encounters drop below 1,500 a day.

As The New York Times notes, many people intentionally cross the border and then turn themselves in to border agents to begin the asylum process. Doing so allows them to remain in the U.S. for years while they await their court appearances — but under Biden’s executive action, migrants can be returned to Mexico or their home countries in a matter of days or hours, and would-be asylum seekers need to prove they have reason to fear being tortured if they’re sent back.

The ACLU said in its suit Wednesday the country had long “sheltered refugees seeking a haven from persecution.”

“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 group wrote in the lawsuit.