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The American Civil Liberties Union (ACLU) and immigrant advocacy organizations have filed a legal challenge to the Biden administration’s new asylum ban, which went into effect after Title 42 — a pandemic-era emergency policy that was widely condemned by immigrant advocates — expired on Thursday.
Biden’s asylum ban combines unlawful Trump-era “third country transit ban” policies — which Biden had claimed to be opposed to during his campaign — with additional asylum restrictions that have previously been found to violate due process rights.
“The Biden administration has had over two years to set up a fair and humane asylum process post-Title 42. That it has instead chosen to resurrect and repackage illegal Trump-era policies is reprehensible,” said Melissa Crow, director of litigation at the Center for Gender & Refugee Studies (CGRS).
Under this policy shift, people who are not from Mexico who are seeking asylum at the border will generally be ineligible for asylum. A factsheet on the rule by the organization Human Rights First details that this policy violates U.S. law and treaty obligations and will fuel race- and nationality-based discrimination, exacerbate the family separation crisis, and return refugees to countries where they face poverty, persecution and violence.
“It is a profound shift for a Democratic president to implement a new ban on asylum-seekers,” said Andrea Flores, who served as a White House border official in the first year of the Biden administration. “It’s evidence that the past decade of far-right attacks on Black and brown asylum seekers have significantly weakened the Democratic Party’s commitment to providing refuge to people fleeing persecution and torture.”
Tens of thousands of individuals and organizations, including the ACLU, submitted public comments on the policy, urging the Biden administration to not enact the ban.
“President Biden just ushered in a new period of immense suffering for people already enduring violence and persecution,” said Jonathan Blazer, director of border strategies at the ACLU. “He has closed off the possibility of asylum in the United States to the majority of people seeking safety — in contradiction with our nation’s laws and values. In doing so, he is finishing Trump’s job rather than fulfilling his own campaign promises.”
The policy has also been condemned by progressives in the Democratic party, who have said that the ban is not only extreme but illegal.
“By almost imitating a Trump-era asylum ban the Biden Administration is attempting to implement an extreme immigration policy that is not supported by U.S. law,” said Rep. Jamaal Bowman (New York) on Twitter.
“Seeking asylum is a fundamental human right,” said Rep. Rashida Tlaib (Michigan). “This repackaged Trump-era policy will put countless lives at risk. No human is illegal.”
The ACLU challenge to the rule argues that U.S. courts have previously held that similar bans restricting access to asylum based on an individual’s manner of entry have been ruled unconstitutional and that requiring asylum seekers to use a mobile app to secure an appointment to seek asylum is woefully inadequate.
“The Biden administration’s new ban places vulnerable asylum seekers in grave danger and violates U.S. asylum laws. We’ve been down this road before with Trump,” said Katrina Eiland, managing attorney with the ACLU Immigrants’ Rights Project. “The asylum bans were cruel and illegal then, and nothing has changed now.”
The Biden administration has also reduced the amount of time that asylum seekers have to find and consult attorneys before their crucial first “credible fear” interview. Migrants who fail to convince officials that there is a “significant possibility” that they will be persecuted if forced to return to their home country are deported.
“The decision to cut the time makes it clear that the Biden administration is doing everything possible to fast-track people for deportation as opposed to giving them the opportunity to truly access due process and a fair chance to have their asylum claim adjudicated,” Taylor Levy, an immigration attorney, told The Los Angeles Times.
The Trump administration issued a similar policy in 2019, but it was later blocked by a federal judge.
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