Lawsuits Filed Against Biden Administration for Asylum Order by Immigration Advocates

President Joe Biden’s latest executive order on the border asylum rights is being threatened with lawsuits by organizations that successfully blocked former President Donald Trump’s similar efforts, such as the ACLU. The ACLU argues that the law mandates screening migrants for asylum eligibility regardless of where they enter the country.

Lee Gelernt, an ACLU attorney who led lawsuits against Trump’s asylum policies, stated, “The law is very clear that individuals must be screened for asylum, regardless of where they enter. Therefore, the policy of cutting off asylum for those who enter between ports is illegal, just as it was under Trump’s administration.”

Biden’s executive order, announced recently, restricts the ability of immigrants to seek asylum if they enter the country between ports of entry and if there are more than 2,500 border crossings in a week period. This approach using border metrics is a new way to enforce limitations on asylum seekers that has faced legal challenges in the past.

The Departments of Homeland Security and Justice argue that due to a backlog in asylum cases, they cannot impose consequences on individuals who don’t have a legal basis to stay in the U.S. after crossing the border. This, in their view, encourages migrants to take the risk of making the journey.

The Trump administration had also attempted similar asylum bans in the past, which were later ruled illegal by the courts. While there are similarities between Trump’s and Biden’s plans, the Biden administration emphasizes that there are more exceptions under their order, including provisions for unaccompanied children seeking protection.

Biden’s plan also eliminates the requirement for agents to inquire about migrants’ fear of returning to their home countries. The concept of linking asylum to border crossing figures was initially proposed in a bipartisan Senate immigration package that Republicans rejected under Trump’s opposition.

Despite the differences, Aaron Reichlin-Melnick, policy director at the American Immigration Council, argues that the distinctions may not be enough to justify Biden’s order under current legal standards.