Immigrants’ Rights Groups Sue Biden Administration Over New Anti-Asylum Rule

WASHINGTON — Immigrants’ rights groups today sued the Biden administration over the president’s proclamation and a new rule that severely restricts asylum and puts thousands of lives at risk.

The American Civil Liberties Union, National Immigrant Justice Center, Center for Gender & Refugee Studies, Jenner & Block LLP, ACLU of the District of Columbia, and Texas Civil Rights Project (TCRP) filed the federal lawsuit on behalf of Las Americas Immigrant Advocacy Center (Las Americas) and the Refugee and Immigrant Center for Education and Legal Services (RAICES).

President Biden issued the proclamation last week along with an accompanying interim rule issued by the Department of Homeland Security and the Department of Justice on the same day. These executive actions will effectively shut off any access to asylum protections for the vast majority of people arriving at the U.S.-Mexico border, no matter how strong their claims. The proclamation echoes the Trump administration’s previous asylum entry ban, which immigrants’ rights advocates successfully challenged.

The lawsuit charges the ban, which allows asylum access only for people who can secure a scarce appointment to present themselves at a port of entry or satisfy a very narrow exception, is flatly inconsistent with the asylum statute that Congress enacted, which permits migrants to apply for asylum “whether or not” they enter at a port of entry. In addition to barring asylum for most migrants, the new rules also create potentially insurmountable obstacles for seeking other types of protection.

“We were left with no alternative but to sue. 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,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

“Around the world, people are fleeing persecution and torture at higher rates than ever before. It’s shameful that the U.S. government has chosen to respond by shutting out access to asylum to those who come to our border in need. NIJC has provided legal services to thousands of people arriving via the U.S.-Mexico border over the past several years and, regardless of how they entered the country, our clients have overwhelmingly had credible asylum claims. Under U.S. law, that should be enough to give them an opportunity to present their cases. We have no doubt that this rule is turning back people who, if the government honored its legal obligations, would qualify for protection. We have no choice but to take the executive branch to court, as we have before, to defend those rights,” said NIJC Litigation Director Keren Zwick.

“The Biden administration’s latest asylum rule runs roughshod over our laws and treaty obligations, choking off a crucial lifeline for people seeking safety. It exacerbates chaos at our southern border, undermines the vital work of humanitarian and legal aid groups, and will result in wrongful deportations of refugees to countries where they face persecution and torture. But the president cannot wipe away decades of established law by executive fiat,” said Melissa Crow, director of litigation at the Center for Gender & Refugee Studies.

“Nearly 60 years following the Immigration and Nationality Act of 1965 and more than four decades following the Refugee Act of 1980, our elected officials have reversed the very spirit of the laws that protect the human and legal rights of not only those seeking safety in the U.S. — but all of us. It remains shocking, if no longer surprising, that the same elected officials who promised to restore our commitment to humanitarian protections are more than willing to sacrifice especially Black and Brown lives for political points and personal gain. Let us be clear: We believe the order and interim final rule that the current administration unveiled this past week are unlawful. We know that checks on misuse of power are an essential function of our judicial branch, and we are using every legal tool to hold our government accountable for preserving and restoring access to asylum and refugee protections. The fight for federal protection of our human and legal rights is never born out of our nation’s capital — but instead must always come to it,” said Javier Hidalgo, legal director at RAICES.

“President Biden's recent executive order flies in the face of our entire asylum system and has no cognizable basis to support it. By doing this, the president has managed to further penalize vulnerable individuals and families seeking protection and violated our laws. We are taking legal action to demonstrate that this flagrant disregard for human safety is illegal, unsustainable, and must be stopped. Asylum is not a loophole but rather a life-saving measure. Access to asylum is a human and legally protected right in the United States,” said Jennifer Babaie, director of advocacy and legal services of Las Americas Immigrant Advocacy Center in El Paso, Texas, and Ciudad Juárez, Mexico, and New Mexico.

“This executive order forces people to wait in danger while facing active threats to their safety. We have seen the failures and dangers of similar policies in the past. These policies are a direct violation of the laws of our country and do nothing to address the root causes of migration. By limiting the number of people who can claim asylum, people are forced to compete for the few appointments available each day in the CBP One App, which is riddled with glitches and is itself a barrier to seeking asylum. This executive order not only violates asylum law, but our values as a country,” said Tami Goodlette, director of the Beyond Borders Program at the Texas Civil Rights Project.

“The Biden administration’s actions effectively shut the door on countless individuals fleeing violence and persecution. Anti-asylum policies are cruel, ineffective, and unlawfully undermine the fundamental right to seek asylum in the United States,” said Arthur Spitzer, senior counsel of the ACLU of the District of Columbia.

The case was filed in U.S. District Court in Washington, D.C.

The complaint can be found online here.