The American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies, and National Immigrant Justice Center filed a legal challenge today to the Biden administration’s new asylum ban.
The challenge was filed swiftly after the new policy’s unveiling. The ban largely mimics two Trump-era policies — known as the “entry” and “transit” bans — which were blocked by the courts. It prohibits asylum for everyone at the border who transited through another country en route to the United States (i.e., people from countries other than Mexico) except for those who are able to obtain a scarce appointment to present themselves at a border port through a flawed mobile application; the rare person who first sought and was denied asylum in another country; or those who can prove that they qualify for one of a few other extremely narrow exceptions.
“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 filing argues that asylum laws do not allow the administration to restrict access to asylum based on an individual’s manner of entry or whether they applied for asylum elsewhere. It further explains that migrants cannot meaningfully seek asylum in transit countries because many lack a functioning asylum system, others have systems that are stretched to the breaking point, and most are not remotely safe for asylum seekers to find refuge. U.S. courts have recognized these principles in rejecting the previous asylum bans that the new rule tries to combine and re-impose.
“People fleeing persecution have a legal right to seek asylum, no matter how they reach the border,” said Melissa Crow, director of litigation at the Center for Gender & Refugee Studies (CGRS). “Our asylum system was designed to protect people fleeing imminent threats to their lives, who do not have the luxury of waiting for an elusive appointment or for an application to be adjudicated in a country where they are in danger. 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.”
The case also cites numerous issues with requiring people to use the flawed CBP One mobile app to secure an appointment to seek asylum, including lack of financial resources to acquire a smartphone, lack of adequate internet access to use the app, technical glitches, language and literacy barriers, and an insufficient number of available appointments. These multiple, compounding barriers to CBP One access will leave many asylum seekers stranded indefinitely in dangerous and life-threatening conditions in Mexico.
“This unlawful rule relies on a mobile app that functions poorly, is available in just three languages, and requires people to enter a lottery for a woefully insufficient number of appointments,” said Keren Zwick, director of litigation at the National Immigrant Justice Center. “Even more egregious, the rule perpetuates false notions that people fleeing persecution are safe in Mexico and Central America, and it offers purported solutions that will be routinely unavailable, especially to migrants who are not from the Western Hemisphere. In doing so, the rule levies special harm on some of the most vulnerable migrants, including women, LGBTQ people, and Black and Indigenous people.”
The challenge to the ban was filed in the U.S. District Court for the Northern District of California on behalf of the East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center.
Katie Hoeppner, ACLU (email)
Inga Sarda-Sorensen, ACLU (email)
Brianna Krong, CGRS (email)
Tara Tidwell Cullen, NIJC (email)