ACLU files lawsuit over Biden’s border executive action

The American Civil Liberties Union sued the Biden administration Wednesday over a sweeping executive action that largely shuts off asylum to migrants crossing the US southern border illegally.

The executive action – which bars migrants crossing the border illegally from seeking asylum, with some limited exceptions, when an average daily threshold is met – marked President Joe Biden’s most dramatic move on the US-Mexico border.

Moments after the measure was announced last week, the ACLU warned it would sue the administration. On Wednesday, the group filed the lawsuit in Washington, DC.

The filing argues that the new rules violate US immigration law and the Administrative Procedure Act, which lays out the procedural steps agencies must go through in implementing certain policies.

The lawsuit challenges rules restricting asylum for migrants crossing illegally, citing US law that states migrants can apply “whether or not” they enter at a designated port of entry; the requirement to claim fear, instead of being asked by authorities; the heightened screening standard; and reducing time for attorney consultation.

The complaint doesn’t seek emergency relief at this point. The plaintiffs are two Texas-based organizations that work with immigrants: Las Americas and RAICES.

“There is no legal daylight between this asylum ban and the Trump ban the courts struck down. The law is flatly illegal, period,” said Lee Gelernt, an ACLU attorney who is lead counsel in the lawsuit and argued the challenge to the Trump asylum ban.

“This law will not deter desperate families from seeking refuge here. It is ill advised and will put lives at risk,” he added.

White House spokesperson Angelo Fernández Hernández in a statement responding to the lawsuit said the Biden 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.”

Senior administration officials anticipated, when previewing the executive action last week, that there’d be legal challenges.

“I respectfully disagree with the ACLU,” Homeland Security Secretary Alejandro Mayorkas told ABC’s Martha Raddatz Sunday. “I anticipate they will sue us. We stand by the legality of what we have done.”

Similar rules implemented under the Trump administration have been blocked by the courts.

In 2018, Trump tried to use the same authority invoked by Biden – 212f, which gives the president broad authority to implement immigration restrictions – to clamp down on border crossings. But ultimately, a federal appeals court ruled that the authority conflicts with asylum law and the 212f authority doesn’t override it.

The case – known as East Bay Sanctuary Covenant v. Trump – served as an example of why the president is limited in his ability to shut down the border.

This story has been updated with additional reporting.

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