Legal Challenges Mount against Biden’s Asylum Order, say Immigration Advocates

President Joe Biden’s executive order curtailing asylum rights at the border is being threatened with lawsuits from organizations that successfully blocked former President Donald Trump’s attempts, including the ACLU. The ACLU argues that migrants must be screened for asylum eligibility by law.

“The law is clear that regardless of where you enter, you must be screened for asylum,” stated ACLU attorney Lee Gelernt, who led lawsuits against Trump’s asylum policies. “This policy of denying asylum to those entering between ports is illegal, just as it was when Trump attempted it.”

Biden’s recent executive order limits the right to seek asylum for immigrants entering between ports of entry if there are more than 2,500 border crossings in a seven-day period. This approach uses border statistics as a new way to impose restrictions on asylum, which have been overturned by courts in the past. Current law allows asylum seekers to present their claims at ports of entry or between ports due to various logistical and safety concerns.

Biden justified his order by stating that existing laws make it difficult to grant protection to those who need it while enabling swift deportation of those without a legal basis to stay. DHS and DOJ cite a backlog in asylum cases as the reason for being unable to enforce consequences for border crossers without a lawful basis to remain in the US.

The Trump administration’s asylum bans from 2018 and 2019 were ruled illegal by the courts. While experts note similarities between Biden’s and Trump’s plans, the Biden administration argues that their plan includes more exceptions, such as allowing unaccompanied children to seek protection.

Biden’s order also eliminates the requirement for agents to inquire about migrants’ fear of returning to their home countries. Tying asylum to border crossing numbers was initially proposed in a bipartisan Senate immigration proposal rejected by Republicans under Trump’s administration.

Aaron Reichlin-Melnick from the American Immigration Council believes the differences are insufficient to justify Biden’s order, arguing that an asylum ban tied to border crossing figures is still illegal.