Biden border order on ‘shaky legal ground,’ say immigration advocates

President Biden’s new executive order that would significantly restrict the rights of asylum seekers at the border is already facing threats of lawsuits from people who successfully blocked a similar effort by former President Trump.

Biden’s Tuesday order borrowed from a plan included in bipartisan Senate talks that would largely cut off the right to apply for asylum between ports of entry if the seven-day average of daily border crossings exceeds 2,500.

While the use of border criteria as a basis for denying access to asylum procedures to people fleeing persecution is new, the main restrictions on access to the system are not new and have been invalidated in court before.

“The law is clear that people must be vetted for asylum, regardless of what country they come from, so this policy of terminating asylum for people coming from port to port is illegal, so it was illegal when Trump tried to do it,” said Lee Gerentz, an attorney with the American Civil Liberties Union who led lawsuits against the Trump-era asylum rule and has vowed to challenge the new rule.

Asylum seekers are allowed to apply if they present themselves at a port of entry, but the law also allows them to apply between ports of entry after crossing the border.

This law was enacted with the understanding that when fleeing danger, ports may be hundreds of miles away or difficult to access.

But now Biden is targeting the practice as an increasing number of migrants are shuttled between ports of entry to claim asylum, then forced into a massively backlogged system where they wait years for a decision on whether to grant them protection.

“The basic legal tension is that the right to asylum is very clearly enshrined in federal law enacted by Congress, and it’s very clear that anyone who is physically present in the United States has the legal right to apply for asylum,” said César Cuauhtémoc García Hernández, a professor of immigration law at Ohio State University College of Law.

“In 1980, Congress laid out a very basic legal obstacle that the Trump administration had a hard time overcoming, and I think the Biden administration will have a hard time overcoming, which is that once someone is on U.S. territory, it doesn’t matter how they got here. It doesn’t matter whether they have federal authorization to be here. They have a legal right to apply for asylum.”

President Biden’s proclamation and the joint Department of Homeland Security (DHS) and Department of Justice (DOJ) regulations have drawn much criticism from Congress for not addressing refugee protection law, which argues that the prescribed procedures are simply not feasible with the current migration flow, where more people are seeking protection.

“For the vast majority of people in immigration proceedings, current law makes it impossible to quickly provide protection to those who need it or to quickly remove those who cannot demonstrate a lawful basis to remain in the United States,” Biden wrote in the order.

Meanwhile, government ministries complained that asylum applications have been backlogged for years, “we are unable to respond predictably and quickly to most foreigners who cross our borders without a lawful basis for their presence. This failure to provide predictable and timely decisions and responses creates even greater incentives for migrants to undertake dangerous journeys.”

Trump’s refugee ban

The Trump administration introduced its first asylum ban in 2018, barring anyone entering the U.S. between immigration cases from seeking protection, but it was blocked by an injunction and a judge later ruled the rule unlawful.

A rule enacted in 2019 that would not grant asylum to people who pass through another country on the way to the border without seeking protection there was also later struck down by a court.

Immigration law experts and the Biden administration disagree about how much the nuances of the Biden plan differ from the Trump administration’s 2018 ban on refugees.

Biden’s plan makes more exceptions than Trump’s policy, such as allowing unaccompanied children to seek asylum, and would allow migrants who are actively seeking asylum (known as the “shout test”) but eliminate requirements that officials ask whether migrants are at risk of being deported to their home countries.

Another big difference is tying asylum rights to the number of people crossing the border — an idea first proposed in a bipartisan Senate immigration bill that was quickly rejected by Senate Republicans after President Trump voiced opposition to it — that would have limited asylum if the number of people crossing the border exceeded 4,000.

But Aaron Reichlin Melnick, policy director at the American Immigration Council, said the changes are not significant enough to justify the executive order.

“The Department of Homeland Security and the Department of Justice argue that it is lawful because it only bars asylum to a small percentage of people crossing the border between ports of entry, and that that is enough of a distinction,” he said, but it does little to address the problem with the law allowing migrants to seek asylum regardless of how they entered the country.

He also rejected the idea that tying asylum to border crossing numbers provides any legal basis.

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

Garcia Hernandez said the administration will also have a hard time defending the fact that it introduced the rule, which went into effect immediately, without a notice-and-comment period that could have been challenged by litigants under the Administrative Procedure Act.

“Simply saying, ‘We’ve had a higher than normal number of people seeking asylum in the last three and a half years’ doesn’t lead to the question, ‘Why couldn’t we wait 60 or 90 days to allow the public to have their say and have their views taken into account?'” he said.

Shake off the threat

Administration officials have denied the imminent threat of litigation.

“Frankly, I think we’re used to being sued by both sides of the political aisle for just about every step we take in this space. This is yet another sign that there are no lasting solutions to the challenges we face unless Congress does its job,” a senior administration official told reporters on Tuesday.

But for Gelendt, the repeated accusations of parliamentary inaction highlight that the administration is not on solid legal ground.

“In essence, we are challenging this executive order as an overreach of executive power under a law passed by Congress. The administration recognizes that it is in a precarious legal position, which is why it tried to get this through Congress. As you know, it failed. But we don’t believe the executive branch can do this unilaterally,” he said.

Immigrant groups have expressed confidence in their ability to challenge the law, but the process will be lengthy.

“Whether this order is ultimately overturned or not, it is in effect as of today, and in the days and weeks until the court rules on this case, there will be people who will be denied entry and their right to seek asylum under this order,” Reichlin-Melnick said.

“This is having an immediate effect.”