Border Patrol process hundreds of migrants on Dec. 5, 2023. Many are from African countries — Senegal, Guinea and Mauritania — and a smaller number are from India and Central and South America. Many say they came through a cut in the border wall.By Franco Ordoñez, NPR White House Correspondent
The ACLU filed a lawsuit in federal court on Wednesday challenging the Biden administration’s new executive actions that block migrants from seeking asylum at the southern U.S. border when crossings surge.
Lee Gelernt, the lead attorney for the ACLU, told NPR that President Biden’s new measures are nearly identical “from a legal standpoint” to ones that former President Donald Trump used to try to ban migrants from seeking asylum between ports of entry.
But Gelernt said Congress has been “crystal clear” that asylum seekers can request relief “whether or not you enter at a port.”
“We are challenging President Biden's executive action because it's flatly illegal and inconsistent with the asylum laws that Congress passed decades ago,” Gelernt said in an interview.
“President Trump enacted a nearly identical asylum ban, and we successfully challenged that. We have no choice but to challenge this one as well.”
The lawsuit was filed on behalf of two Texas advocacy groups: Las Americas Immigrant Advocacy Center and the Refugee and Immigrant Center for Education and Legal Services.
The lawsuit doesn't seek an emergency injunction for the new rules
The Biden administration announced the rules last week. Specifically, they bar migrants from seeking asylum when they cross into the country between ports of entry when border encounters rise above 2,500 per day.
The restrictions can be lifted two weeks after daily numbers dip below 1,500 people.
The lawsuit alleges the Biden rule violates legal procedures for agency rulemaking and adjudications because it did not justify “radical departures” from prior practices and because the public didn’t have the chance to comment before the rule took effect.
However, the lawsuit did not seek an emergency injunction to block the administration from applying the new rule. Gelernt said that is an option for the future once advocates find specific migrants who have been harmed by the measure.
Biden is under pressure over the border
The border has become an increasingly difficult issue for Biden, given the record number of migrants coming across the border — and because polls show most Americans don’t approve of the way he has handled the challenge.
When he announced the new measures last week, Biden said he was forced to take unilateral action after Republicans rejected a bipartisan compromise on legislation. Trump had opposed the compromise.
The lawsuit was not unexpected. The ACLU announced its plans to sue as soon as Biden announced his measures. The Biden administration has said it is prepared to defend the new rules.
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