El Paso, Texas — Migrant advocates filed a lawsuit Friday in federal court challenging the Biden administration’s new asylum restrictions that officials say will deter illegal crossings of the U.S.-Mexico border.

The American Civil Liberties Union and other groups asked a federal district court in San Francisco to block the rule, saying the policy, which took effect Friday, violates US asylum law.

At the center of the lawsuit is an order the Biden administration hopes will curb illegal border crossings after ending the pandemic-era deportation policy under Section 42. It expired at midnight Thursday due to the end of the COVID-19 public health emergency.

The policy, which mirrors Trump-era rules, bars migrants who cross the southern border without authorization from receiving asylum unless they first apply for humanitarian asylum in a third country, such as Mexico, en route to the U.S.

Title 42 Immigration Asylum
Paula, foreground, from Guatemala, holds her daughter as she questions U.S. Customs and Border Protection officers about new asylum rules at the San Ysidro port of entry, Thursday, May 11, 2023, in Tijuana, Mexico.

Ryhora Bykov / AP

In practice, the rule will deny asylum to most non-Mexican migrants. Those ineligible for asylum under the rule could face immediate deportation to their home country or Mexico and a five-year ban on re-entering the US. Those who try to re-enter the country illegally may be prosecuted, the Biden administration warned.

In their lawsuit, the lawyers said the Biden administration’s ruling “attempts to resuscitate and reconcile illegal features” of two Trump administration policies that have been blocked in court. One of these rules denied asylum to migrants when they entered the US between points of entry, while others barred migrants from receiving asylum unless they sought protection in a transit third country.

The ACLU successfully challenged both Trump-era rules and convinced judges to stop them.

“The rule operates in the same manner as the Trump administration’s previous asylum bans: asylum seekers subject to the rule — all non-Mexicans — are strictly barred unless they meet one of the listed and limited conditions or exceptions,” it said. in the lawsuit.

Under US asylum law, migrants on American soil are allowed to apply for protection regardless of how they entered the country. Because the system is massively overloaded, migrants wait years on average for a decision. The legal threshold for asylum is very high, and many migrants end up not meeting the eligibility criteria to prove that they have fled persecution stemming from certain factors, such as their religion or politics.

It is not yet clear whether federal courts will find the Biden administration’s ruling illegal. While the new restriction is based on punishing migrants for entering the U.S. without authorization and for not seeking asylum elsewhere, it is less restrictive than the near-total asylum ban imposed under former President Donald Trump.

The Biden administration’s cap on asylum, for example, does not apply to unaccompanied children or migrants who have made an appointment to enter the U.S. through the Mexican asylum seeker mobile app or who are sponsored by U.S. residents in within the program for Cubans, Haitians, Nicaraguans and Venezuelans.

The rule also provides limited exemptions for migrants who face an “imminent and extreme threat” in Mexico, those with an “acute” medical emergency, and victims of serious human trafficking.

The Biden administration has also argued that its approach to asylum restrictions differs from the Trump administration’s efforts because it combines the measure with expanded channels for would-be migrants who can fly in or otherwise legally enter the U.S.

“This rule responds to the increased number of encounters we are experiencing at the border and is critical to creating an orderly process for seeking protection in the United States at a time when Congress refuses to reform our broken immigration laws or provide the necessary funds to hire sufficient asylum seekers. officers and immigration judges to process claims in a timely manner,” Department of Homeland Security spokesman Luis Miranda said in a statement.

US border officials have reported a record high rate of migrant apprehensions under President Biden, and the number of illegal crossings has risen to unprecedented levels in recent days before the end of Section 42.

During the first three days of this week, an average of 10,000 migrants were apprehended daily after illegally crossing the US-Mexico border. According to US government estimates, about 60,000 migrants were waiting in northern Mexico for a chance to enter the US, Border Patrol Chief Raul Ortiz said.


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