ACLU Sues to Enjoin New Asylum Rule

FAIR Take | May 2023

The American Civil Liberties Union (ACLU), the ACLU of Northern California, the Hastings Center for Gender & Refugee Studies, and the National Immigrant Justice Center have filed a lawsuit in the Northern District of California challenging the new Biden Administration asylum rule.  The lawsuit was filed within an hour after Title 42 officially expired.

The rule, which was initially released in February, was released in final form last Wednesday in anticipation of the surge of asylum-seekers.  The rule creates a rebuttable presumption that, for a period of two years after the end of Title 42, an alien is ineligible for asylum if the alien illegally enters at the southern border after traveling through a country that offers asylum or asylum-like protection pursuant to the 1951 United Nations Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

However, this presumption of ineligibility for asylum does not apply in many circumstances.  For example, it does not apply if the alien is an unaccompanied alien child (UAC).  It also does not apply if the alien, or a member of the alien’s family was authorized to travel to the U.S. to seek parole.  In addition, it does not apply if the alien applied for asylum in a country through which the alien traveled and was denied.

Most importantly, however, the presumption of ineligibility does not apply if the alien arrives to claim asylum at a port of entry, pursuant to a pre-scheduled time and place using the CBP One app.  It also does not apply if the alien arrives at a port of entry without an appointment, if the alien demonstrates by a preponderance of the evidence that it was not possible to access or use the Department of Homeland Security (DHS) scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacles.

This means that the only real restriction the rule places on asylum is that an alien must make an appointment through the CBP One App and present himself or herself at a port of entry.  Contrary to numerous media reports, because of these exceptions the rule does not actually require that an alien seek asylum in another country first before claiming asylum in the United States.  And, even if the presumption applies, the new rule provides aliens numerous ways to rebut it and still establish eligibility for asylum.

Section 208 of the Immigration Act, which governs asylum, expressly authorizes the government to issue rules establishing “additional limitations and conditions” that make an alien ineligible for asylum.  It also expressly requires the government to adopt procedures for aliens who want to claim asylum and authorizes the government to issue regulations imposing additional conditions or limitations on the consideration of an application not inconsistent with the Immigration and Nationality Act (INA).

In its lawsuit, however, the ACLU argues that the law does not allow the Administration to limit eligibility for asylum based on where they cross the border or whether they applied for asylum elsewhere.  It further argues that migrants cannot meaningfully seek asylum in transit countries because those countries lack a functioning asylum system, others have overburdened systems, and most of these countries are not safe for aliens fleeing persecution.

Upon filing the lawsuit, Katrina Eiland, managing attorney with the ACLU Immigrants’ Rights Project, told the media: “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…The asylum bans were cruel and illegal then, and nothing has changed now.”

The Biden Administration, ironically, is now defending itself against attacks from the left.  After learning of the ACLU’s lawsuit, Homeland Security Secretary Mayorkas said, “We have built lawful safe and orderly pathways for people to use.” If asylum-seekers don’t adhere to those pathways, he added, they don’t face a ban but “have a higher burden of proof to meet.”