ACLU Sues Biden Administration Over Border Asylum Restrictions

The American Civil Liberties Union (ACLU) sued the Biden administration on June 12 after the president signed an executive order limiting the number of people applying for asylum at the southern border.

The advocacy group filed the lawsuit on behalf of two Texas-based organizations that work with immigrants, Las Americas Immigrant Advocacy Center and RAICES, arguing that President Joe Biden’s June 4 executive order differs little from similar action taken by the Trump administration that was blocked by the courts.

President Biden’s executive order blocks the entry of noncitizens over the southern border after an average of 2,500 people or more have already crossed daily for seven straight days. Due to the current high number of border crossings, roughly 4,000 daily, the restrictions became active after the order went into effect on June 5.

The restrictions stay in effect until two weeks after crossings drop below 1,500 per day through a seven-day average. The last time border crossings were that low was in July 2020.

The order marks President Biden’s most comprehensive move against illegal immigration since migrant crossings surged during his term. The lawsuit is also the first test for the crackdown, which followed months of deliberations at the White House.

“By enacting an asylum ban that is legally indistinguishable from the Trump ban we successfully blocked, we were left with no choice but to file this lawsuit,” said ACLU attorney Lee Gelernt.

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The suit argues that the order violates U.S. immigration laws and the Administrative Procedure Act, which determines the procedure agencies must follow when enacting certain policies.

It also alleges that the Biden administration’s push to have migrants cross at designated ports of entry—and suspend asylum for those who don’t—violates federal immigration laws.

President Biden’s order follows some of former President Donald Trump’s immigration restrictions in citing Section 212(f) of the Immigration and Nationality Act, which allows a president to limit “any aliens or of any class of aliens into the United States” when the entries “would be detrimental to the interests of the United States.”

However, the president has argued his order differs from his predecessor’s actions while also criticizing the Trump administration’s overall immigration policies. For instance, he has said, human trafficking victims and unaccompanied minors are not subject to the limits in President Biden’s order.

The group added that it believes President Biden’s order “takes the same approach as the Trump administration’s asylum ban” and that a court challenge would follow.

Homeland Security Secretary Alejandro Mayorkas, speaking with ABC’s Martha Raddatz on June 9, said he disagrees with the ACLU.

“I anticipate they will sue us. We stand by the legality of what we have done,” he said.

Migrants who do not express fear of returning to their home countries after arriving at the border will be removed from the United States within hours or days under President Biden’s order. They could also face punishments, including a five-year ban from reentering the country or criminal prosecution.

Those who do express fear of returning to their home countries will be screened at a higher-than-current standard by a U.S. asylum officer.

Migrants who pass this screening process can apply for limited forms of protection, such as the U.N. Convention Against Torture. That process prevents the return of people to a country where they could face torture as a result.

Sam Dorman and The Associated Press contributed to this report.