ACLU files federal complaint against new Biden asylum rule

(WASHINGTON) — The American Civil Liberties Union (ACLU), the Texas Civil Rights Project and other civil rights organizations have filed a federal complaint challenging a recent executive order from President Joe Biden, which limits access to asylum.

On Tuesday, June 4, Biden issued a proclamation that restricts access to asylum for migrants who cross into the United States in between ports of entry. Under a new interim rule, the administration can bar asylum access when migrant encounters at the border reach a seven-day average of 2,500 or more. The rule is lifted two weeks after encounters drop to less than 1,500 for a week straight.

Two Texas-based civil rights organizations, Las Americas Immigrant Advocacy Center and Refugee and Immigrant Center for Education and Legal Services (RAICES), are listed as plaintiffs in the complaint. The U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, among others, are listed as defendants.

Under current immigration law, migrants who reach U.S. soil “whether or not at a designated port of arrival” are eligible to apply for asylum. ACLU attorney Lee Gelernt, who will be leading this lawsuit, claims, in part, that the executive action violates a migrant’s right to seek asylum.

“This ban egregiously flouts the nation’s asylum laws. An asylum ban is flatly illegal, just as it was when the Trump administration tried it,” Gelernt told ABC News in a statement. “This law will not deter desperate migrants from seeking protection here and will just put lives at risk.”

Gelernt said the Biden administration violated the Administrative Procedure Act, in part, because it did not go through the procedural requirement of giving the public a chance to comment before the rule took effect.

“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.

ABC has reached out to DHS for comment about the complaint.

“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. The Administration will continue to enforce our immigration laws – those without a legal basis to remain in the United States will be removed,” White House spokesperson Angelo Fernandez Hernandez said to ABC News in a statement.

Senior officials told reporters on Wednesday that while the rule is in place, migrants will be considered ineligible for asylum except for “exceptionally compelling circumstances” like facing a medical emergency or imminent threat to their safety if they’re denied entry. The proclamation also sets a higher standard for migrants to ensure they’re eligible for admission into the U.S.

Immigration officials would be able to allow a migrant into the country if they presented a “reasonable probability” of persecution or torture, higher than the current “reasonable possibility” standard. The rule includes an exception for unaccompanied minors, leading some advocates to worry it will incentivize migrants to send their children to make the dangerous journey into the United States alone.

Gelernt said he plans to add individual plaintiffs as his team finds migrants who may have been subjected to the rule. The complaint does not immediately request a temporary restraining order to pause the rule while court challenge plays out, but the ACLU continues to consider doing so, he said.

On Friday, administration officials said the number of migrants being processed for expedited removal had more than doubled since the proclamation went into effect.

On Sunday, Department of Homeland Security Secretary Alejandro Mayorkas told “This Week” co-anchor Martha Raddatz the new rule would push migrants to opt for legal ways of seeking asylum, like making an appointment through the CBP One app.

“Our intent is to really change the risk calculus of individuals before they leave their countries of origin and incentivize them to use lawful pathways that we have made available to them and keep them out of the hands of exploitative smugglers,” he said.

He also pushed back on the ACLU’s claim that the policy “will put thousands of people at risk.”

“I respectfully disagree with the ACLU. I anticipate they will sue us. We stand by the legality of what we have done. We stand by the value proposition,” Mayorkas said.

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