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Biden administration faces lawsuit over anti-asylum rule

The executive order will limit the number of migrants who can receive asylum at the southern U.S. border once crossings exceed 2,500 people a day.

WASHINGTON (CN) — A coalition of immigrant rights groups filed a lawsuit Wednesday over President Joe Biden’s executive order that effectively bars most people illegally crossing the southern U.S. border from receiving asylum.

The suit, filed in the U.S. District Court for the District of Columbia, is the first piece of litigation to challenge Biden’s rule — which took effect June 5 —  that limits migrants receiving asylum once the number of illegal crossings exceeds 2,500 people a day. 

Plaintiffs in the litigation include two Texas-based organizations: Las Americas Immigrant Advocacy Center and the Refugee and Immigrant Center for Education and Legal Services. The organizations are represented by legal advocacy groups, including the American Civil Liberties Union, the National Immigrant Justice Center, the Center for Gender & Refugee Studies, Jenner & Block and the Texas Civil Rights Project. 

The Department of Homeland Security, U.S. Citizenship and Immigration Services, Customs and Border Protection, Immigration and Customs Enforcement, the Department of Justice and the Executive Office for Immigration Review are named as defendants. 

The plaintiffs argue that the move is in direct contrast with longstanding asylum law, pointing to a section of the 1980 Refugee Act. 

“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 groups say in the suit. 

The statute specifically holds that any noncitizen who arrives at the nation’s borders, at a designated port of arrival or not, may seek asylum irrespective of such their status.

Under the new rule, the advocacy groups note, a screening policy for asylum seekers will lead to the “refoulement” of countless migrants — the forcible return of asylum seekers to a country they are liable to face persecution — by allowing their quick removal without any process. 

The new policy requires migrants to “manifest” a fear of return to an immigration officer, which, in practice, is difficult for hungry, exhausted and intimidated migrants. 

Even if the officer finds a migrant has “manifested” a fear of return, they are still subject to a new, more stringent standard to show a “reasonable probability” of torture or persecution, rather than the previous “significant possibility” standard. 

Further, the rule drastically reduces the amount of time a migrant has to find a lawyer if they are deemed to have manifested a fear to four hours, down from the 24 hours they had previously, and the 48 hours allowed a year ago. 

“In practice, this removes any chance of receiving a legal consultation, much less representation, for the overwhelming majority of noncitizens in defendants’ custody, greatly increasing the risk of refoulement,” the groups argue. 

With the new rule’s implementation, the advocacy groups’ mission to provide legal counsel to asylum seekers are “significantly frustrated,” they argue, citing the cap on people eligible for asylum and the four-hour limit. 

Further, the rule was issued without notice and opportunity to comment, which the groups argue is a clear violation of the Administrative Procedure Act in addition to violating the Immigration and Nationality Act. 

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies decried the new rule in a statement. 

“The Biden administration’s latest asylum rule runs roughshod over our laws and treaty obligations, choking off a crucial lifeline for people seeking safety,” Crow said. “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.” 

A Department of Homeland Security spokesperson declined to comment on the lawsuit itself, citing the litigations pending status, but defended the new rule. 

“The Securing the Border rule is lawful, is critical to strengthening border security and is already having an impact,” the spokesperson said in an emailed statement. “Noncitizens without authorization should not come to our southern border. There are serious consequences for crossing unlawfully.”

President Biden described the new rule as necessary in to “preserve who we are for future generations to come” during prepared remarks at the White House on June 4. 

The decision has been widely regarded as a political move to avoid blowback over illegal immigration. Recent polling by the Pew Research Center shows a growing share of voters who feel undocumented immigrants should not be allowed to stay in the country. 

In a June 6 poll, 41% of respondents took such a stance, up from 22% in 2017. A majority, 59%, still feel undocumented immigrants should be allowed to stay, but that number has fallen from 77% in 2017. 

Illegal immigration has long been a focal point of former president Donald Trump’s platform, both in his 2016 campaign and ongoing campaign, which he regularly refers to as an “invasion.”

In a video posted online following Biden’s announcement, Trump called the rule “weak and pathetic." 

The advocacy groups request that a judge vacate the rule, find it arbitrary, capricious and procedurally invalid, as well as award them legal fees. 

Follow @Ryan_Knappy
Categories / Immigration, National, Politics

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