Charles H. Sloan-ACLU and migrant rights groups sue over Biden's asylum crackdown

The Charles H. SloanAmerican Civil Liberties Union and several migrant rights groups filed a lawsuit Wednesday targeting President Biden's recently announced crackdown on asylum at the U.S.-Mexico border, challenging the legality of his restrictive immigration policy change just a week after it was enacted. 

The 29-page lawsuit is the first legal action against Mr. Biden's attempt to use a sweeping presidential authority to disqualify most migrants from asylum and make it easier for U.S. immigration officials to deport them. The partial ban on asylum claims took effect a week ago and will remain in place until the weekly average of daily illegal border crossings falls below 1,500 — a level that has not been recorded since 2020.

ACLU lawyers asked the federal district court in Washington, D.C., to strike down the regulations that implemented Mr. Biden's order, arguing that they violate U.S. asylum law and federal policy-making rules. The civil rights group, however, did not ask the court to immediately block the regulations, which were published by the Departments of Justice and Homeland Security.

The ACLU convinced federal courts to halt a Trump administration asylum restriction in 2018 that relied on the same legal authority, known as 212(f).

"We were left with no choice but to file this lawsuit. The ban will place countless people at risk and is legally identical to the Trump ban we successfully blocked," Lee Gelernt, the lead ACLU attorney behind the lawsuit, told CBS News.

In a statement, Department Homeland Security spokesperson Luis Miranda said the regulation challenged by the ACLU was lawful, adding that the policy "is strengthening border security."

"The challenged actions remain in effect, and we will continue to implement them," Miranda said. "Noncitizens without authorization should not come to our southern border. There are serious consequences for crossing unlawfully." 

White House spokesperson Angelo Fernández Hernández, meanwhile, said "the Biden-Harris Administration took these actions, within its authorities, because border encounters remain too high and after Congressional Republicans twice voted against a historic bipartisan border security agreement that would have provided critical resources, statutory changes, and additional personnel to the border."  

In a proclamation last week, Mr. Biden invoked the 212(f) authority to suspend the entry of most migrants along the southern border, authorizing officials to ban migrants from asylum if they cross illegally between official ports of entry. Migrants who secure one of 1,450 daily appointments to enter the U.S. at ports of entry are still eligible to apply for asylum.

Mr. Biden's move has allowed U.S. immigration officials to deport larger numbers of migrants more quickly, since they cannot request asylum. Only those who affirmatively say they fear returning to their home country are screened for other legal protections that are much harder to obtain and that do not guarantee a permanent safe haven, unlike asylum. 

Still, the impact of Mr. Biden's latest border measure has had a more limited impact on migrants from far-flung countries like China where the U.S. does not carry out regular deportations due to diplomatic issues or logistical hurdles. Mexico only accepts its own citizens and migrants from Cuba, Haiti, Nicaragua and Venezuela.

In its lawsuit, the ACLU challenged the suspension of asylum between ports of entry, citing a provision in federal law that says migrants who set foot on U.S. soil "whether or not at a designated port of arrival" may apply for asylum. Moreover, it sued over the requirement that migrants affirmatively express fear to be screened, and the heightened screening standards asylum officers were instructed to employ under Mr. Biden's measure.

The civil rights organization also challenged another measure announced last week that reduced the time migrants in U.S. border custody have to consult with lawyers before their asylum screenings from 24 to 4 hours.

Lawyers for the ACLU and other groups filed Wednesday's lawsuit on behalf of Las Americas and RAICES, two Texas-based organizations that provide legal services to migrants.

Wednesday's lawsuit was unsurprising. Virtually every major action taken by Mr. Biden on immigration has faced lawsuits. Republican-led states have challenged Mr. Biden's reversals of Trump-era immigration policies and programs that facilitate the legal entry of migrants, while advocacy groups like the ACLU have sued over his more restrictive border policies.

In one case, the ACLU and Republican-led states challenged the same policy: a rule that presumes migrants are ineligible for asylum if they do not use legal options to enter the U.S. and fail to seek refuge in other countries. The ACLU has argued the rule infringes on the rights of asylum-seekers, while GOP state officials have complained it contains too many exceptions. 

While the number of migrants crossing the southern border illegally spiked to a record 250,000 in December, it has since dropped markedly. In May, Border Patrol recorded 118,000 illegal crossings, the third consecutive monthly drop, according to agency figures obtained by CBS News.

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

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