ACLU sues Biden administration over new asylum rule

A group of immigrant advocacy organizations sued the Biden administration Wednesday over its executive action limiting asylum processing last week.

The American Civil Liberties Union and others filed the lawsuit on behalf of Las Americas Immigrant Advocacy Center and the Refugee and Immigrant Center for Education and Legal Services.

In a complaint filed in federal court in Washington, D.C., attorneys for the groups argued that President Joe Biden's recent executive action temporarily limiting asylum processing violated a statute enacted by Congress, which allows migrants to apply for asylum “whether or not” they enter at ports of entry.

"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 lawsuit says.

"That plain statutory text precludes the President and the Executive Branch from barring noncitizens from asylum based on their manner of entry into the United States," it continues.

Biden issued an executive action last week temporarily limiting asylum processing once there has a seven-consecutive-calendar-day average of 2,500 encounters or more. The action went into effect immediately, because daily encounters were hitting a daily average of more than 4,000, according to homeland security officials. According to the action, the border would reopen 14 days after the homeland security secretary determines that there have been seven consecutive days averaging fewer than 1,500 daily encounters between ports of entry.

Some exceptions are permitted, including for unaccompanied children. 

Lee Gelernt, the deputy director of the ACLU’s Immigrants’ Rights Project, who argued the challenge to the Trump administration's asylum ban, had previewed the group's plans to sue shortly after Biden announced the action last week.

“We were left with no alternative but to sue,” Gelernt said in a statement Wednesday. “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.”

White House assistant press secretary Angelo Fernández Hernández said the administration took action “because border encounters remain too high."

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"The Administration will continue to enforce our immigration laws — those without a legal basis to remain in the United States will be removed. We would refer you to the Department of Justice for questions regarding the litigation,” Hernández said in a statement Wednesday.

A spokesperson for the Department of Homeland Security said the department cannot comment on pending litigation.

“The Securing the Border rule is lawful, is critical to strengthening border security, and is already having an impact. The challenged actions remain in effect, and we will continue to implement them," Naree Ketudat, the DHS spokesperson, said in a statement. "Noncitizens without authorization should not come to our southern border. There are serious consequences for crossing unlawfully.”

Biden took the action by invoking provisions in the Immigration and Nationality Act, including 212(f), which gives the president authority to suspend entry to some migrants in case their entry is deemed "detrimental to the interests of the United States.” 

Under the same provision, the Trump administration tried to enact an asylum ban in 2018, which was blocked by the courts.

There were 179,725 encounters along the southern border in April, a slight decrease from recent months, according to U.S. Customs and Border Protection. Over 1.5 million encounters have been recorded this fiscal year to date, meaning fiscal year 2024 has so far outpaced fiscal years 2023, 2022 and 2021 in encounters, according to the data.