Biden border order on 'shaky legal ground,' immigration advocates say

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A new executive order from President Biden drastically curtailing asylum rights at the border is already facing threats of lawsuits from those who successfully toppled similar efforts from former President Trump.

The Tuesday order from Biden borrows from an idea included in bipartisan Senate negotiations. It largely cuts off the right to seek asylum between ports of entry if border crossings tick above 2,500 a day over a seven-day average.

While using border metrics as a basis to deny access to the asylum process for those fleeing persecution is new, major limitations on accessing the system are not and have been previously struck down in court.

“The law could not be more clear that it doesn’t matter where you enter, you have to be screened for asylum. So that’s why this policy of cutting off asylum for people who enter between ports is illegal. And that’s why it was illegal when Trump tried it,” said Lee Gelernt, an attorney with the American Civil Liberties Union (ACLU) who led previous litigation over Trump-era asylum rules and has pledged to challenge this rule as well.

While asylum-seekers are allowed to make the claim if they appear at a port of entry, the law also allows them to do so in between ports of entry after crossing the border.

The law was designed that way to take into account that ports may be hundreds of miles away or difficult to access when someone is fleeing danger. 

But now Biden is targeting that method as the number of migrants crossing between ports of entry to claim asylum is on the rise. Migrants, after declaring asylum, are then funneled into a system with an overwhelming backlog that leaves migrants waiting years to determine if they will be awarded protection.

“The basic legal tension is the right to asylum is very clearly spelled out in federal law enacted by Congress. And it’s quite clear that anyone who is physically present in the United States is legally entitled to request asylum,” said César Cuauhtémoc García Hernández, an immigration law professor at Ohio State University College of Law.

“Congress in 1980 laid out the very basic legal obstacle that the Trump administration struggled to overcome, and I think that the Biden administration is going to struggle to overcome, which is that once a person is in the territory of the United States, Congress says, it doesn’t matter how that person got here. It does not matter whether they have the federal government’s permission to be here. They have a legal right to request asylum.”

Biden’s proclamation and a joint rule from the Department of Homeland Security (DHS) and the Department of Justice (DOJ) takes numerous hits at Congress for failing to act to change asylum law — arguing the process it lays out is simply unworkable with modern migration flows where people are increasingly seeking the protection. 

“For the vast majority of people in immigration proceedings, the current laws make it impossible to quickly grant protection to those who require it and to quickly remove those who do not establish a legal basis to remain in the United States,” Biden wrote in the order.

Meanwhile, the departments complained the years-long backlog for asylum means they “cannot predictably and swiftly deliver consequences to most noncitizens who cross the border without a lawful basis to remain. This inability to predictably deliver timely decisions and consequences further compounds incentives for migrants to make the dangerous journey.”

Trump’s asylum bans

In 2018, the Trump administration introduced its first asylum ban, which also barred anyone who came into the U.S. between ports of entry from seeking the protections, but it was enjoined, and a judge later determined the rule was illegal. 

A 2019 rule that barred asylum for those who traveled through another country on the way to the border without first seeking the protections there was also later struck down by the courts.

Immigration law experts and the Biden administration disagree over the extent to which the nuances of the Biden plan distinguish it from the 2018 Trump asylum ban.

Biden’s plan offers more exceptions than Trump’s policy did, including allowing unaccompanied children to seek protection. And while it would allow migrants who actively make the claim to seek asylum — called a “shout test” — it ends the requirement on agents to ask if a migrant has a fear of being returned to their country.

The other chief difference is tying the right to asylum to border crossing figures. That idea was first floated in the bipartisan Senate immigration package that was swiftly rejected by the chamber’s Republicans after Trump spoke out against the proposal. That plan would have limited asylum when border crossings exceeded 4,000.

But Aaron Reichlin-Melnick, policy director at the American Immigration Council, said those shifts are not substantial enough changes to protect the order.

“DHS and DOJ argue that this is legal because it only bans asylum to a slightly smaller portion of people who cross the border between ports of entry, and they argue that makes it distinct enough,” he said, but that does little to address a law that allows migrants to seek asylum regardless of how they entered the country.

He also dismissed the idea that tying asylum to border crossing figures provided any legal cover.

“I don’t think you can put a number on a right,” Reichlin-Melnick said.

García Hernández said the administration would also have trouble defending rolling out the rule and having it take effect immediately without first going through a notice and comment period, something litigants could challenge under the Administrative Procedures Act.

“To say simply, ‘Well, there have been more people requesting asylum over the last three and a half years than is typically the case’ doesn’t get you all the way to ‘why couldn’t you wait 60 days or 90 days to allow the public to comment and then take their feedback into account?’” he said.

Waving off threats

Administration officials waved off the immediate threat of lawsuits.

“I think we are accustomed to being litigated, frankly, from both sides of the political spectrum for just about any measure we take in this space, and that is just yet another sign that there is no lasting solution to the challenges we are facing without Congress doing its job,” a senior administration official told reporters Tuesday.

But to Gelernt, the repeated comments chastising Congress for its failure to act underscores the administration isn’t on strong legal footing. 

“The bottom line is we are challenging this executive order as an excess of executive authority under the laws Congress has passed. And I think that the administration has acknowledged that they are on shaky legal ground, and that’s why they tried to do it through Congress — as you know, that got blown up — but we don’t think the executive can do this unilaterally,” he said. 

While immigration groups project confidence about their ability to challenge the law, the process will be a lengthy one.

“Regardless of whether this order is eventually struck down or not, it’s in effect today. And there will be people who are turned away and denied the right to seek asylum under these orders in those days and weeks before any court gets an opportunity to rule on this,” Reichlin-Melnick said.

“This is having an immediate effect.”

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