A lawsuit challenging new restrictions on political asylum and a temporary block by a federal judge in Florida on U.S. agents’ ability to release migrants at the border quickly created problems for the Biden administration Friday, the first day new immigration policies took effect after the end of the pandemic-era measure known as Title 42.
Anticipating the arrival of thousands of migrants that could overwhelm U.S. border officials, the Biden administration issued several new measures, including a rule that bans migrants from applying for asylum at the border if they did not first secure an appointment through a smartphone application called CBP One, or seek protection — and were rejected — by a country they had traveled through on their way to the U.S.
Following criticism of the restriction by immigration activists, international organizations and some Democratic lawmakers, the American Civil Liberties Union and other advocacy organizations sued the Biden administration late Thursday. The federal lawsuit claims that the new asylum rule mirrors two other Trump-era policies that courts have already struck down.
The Biden administration has insisted its new asylum policy is nothing like those introduced by former President Donald Trump.
“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 groups challenging the rule — which include the ACLU of Northern California, the Center for Gender & Refugee Studies, and the National Immigrant Justice Center — argue that it conflicts with international and U.S. laws that grant migrants a chance to seek asylum whether they arrive at an official port of entry or cross the border, and mandate equal treatment of all refugees.
“The rule is unlawful in numerous ways,” the complaint said. The federal Ninth Circuit Court of Appeals, based in California, “has already held that the rule’s main requirements are illegal. The government cannot force asylum seekers to enter at ports. And the government cannot force asylum seekers to apply for asylum in transit countries,” the document adds, citing precedent from previous rulings blocking similar bans implemented by the Trump administration.
On Friday, activists in a delegation led by the Haitian Bridge Alliance that visited the border said they had spent two days talking to asylum seekers who had traveled through multiple countries and were now sleeping in makeshift camps with no bathrooms. Many were desperate and confused about the new measures .
The Biden administration, they said, is violating the rights of migrants.
“Not long ago, Biden promised to reassert America’s commitment to asylum seekers and uphold their legal right to seek asylum. Well, he has done exactly the opposite with this asylum ban,” said Kica Matos, a representative of the National Immigration Law Center. “The administration has made a deliberate choice to severely limit access to our country’s asylum system, doubling down and building on harmful Trump policies that go against the core of what our American values are.”
Biden administration officials have defended the rule, arguing that it allows people an opportunity to seek asylum while imposing a higher burden on those who try to do so illegally. They added the administration is tying the new restriction to expanded legal immigration programs.
“People who do not use available lawful pathways to enter the U.S. now face tougher consequences, including a minimum five-year ban on re-entry and potential criminal prosecution,” Homeland Security Secretary Alejandro Mayorkas said Friday.
But the complaint argues that “seeking asylum is a lawful pathway protected by our laws regardless of how one enters the country.”
As the new rules began taking effect Friday, Homeland Security officials remained adamant that migrants who show up at the U.S.-Mexico border without pre-authorization will be presumed to be ineligible for asylum.
“We believe that rule is well within our statutory authority,” Acting Assistant Secretary for Border and Immigration Policy Blas Nuñez-Neto said.
Nuñez-Neto said that over the past decades, Republican and Democratic presidents have tried to deal with migration surges using executive action, and President Biden is no different.
“We have been very innovative in trying to address the challenges we faced using our executive authorities,” he said, pointing to the recently enacted parole program for nationals of Cuba, Haiti, Nicaragua, and Venezuela, which he said “has been very effective in reducing encounters and flows throughout the region for nationals from those countries.”
That parole program is also being challenged in the courts by some 20 Republican governors representing border states such as Florida and Texas.
“It is unfortunate that one of the states that have benefited from this enforcement process, Texas, has been leading the litigation against it for what we believe is purely political reasons,” Nuñez-Neto said.
Efforts to quickly release migrants to avoid overcrowding border detention facilities might also get more complicated as a result of Thursday’s ruling by a Florida judge. The judge blocked the administration’s ability to use its parole power to release migrants until their immigration proceedings are finalized.
Nuñez-Neto hinted that the administration would fight the ruling.
“We are concerned about the impact of the Florida litigation on our processing of individuals at the border, and specifically our ability to process people,” he said, noting that migrants are vetted, and those with criminal records do not get released. “The Department of Justice is closely reviewing that decision. And I think you will see additional steps in that litigation very soon.”
DHS has said there are currently 24,000 Border Patrol agents and officers at the U.S.-Mexico border and that the agency is reinforcing staffing with contractors and members of the military.
In addition, Immigration and Customs Enforcement will be adding thousands of beds for detained migrants to their detention system in the coming days. ICE said the elimination of COVID protocols eliminates the requirements that the agency officials perform COVID tests on all detainees at intake, transfer or release, allowing for much faster processing of detained migrants.
While U.S. officials continue to encounter “high levels of non-citizens at the border,” Nuñez-Neto said, agents did not see a substantial increase in migrants overnight after Title 42 ended at 11:59 p.m. Thursday.
Advocates during Friday’s press conference also reiterated that they did not see anyone “storming the border” and accused politicians and anti-immigrant activists of spreading false narratives and rhetoric that was creating fear among migrants.
During visits to Mexican encampments in the border towns of Reynosa and Matamoros, advocates said they saw migrants living in “overpopulated, under-resourced settlements and shelters.” They heard accounts from migrants about how they had faced atrocities such as kidnappings while they were en route toward the U.S. border. And they heard about the technical problems migrants continue encountering while trying to use the CBP One application.
Some migrants had been struggling for months to get an appointment using the smartphone app, while Black migrants complained about receiving error messages after the app failed to recognize their darker complexion, several advocates said.
Maribel Hernandez Rivera, a deputy national political diirector of the ACLU, recalled a mother telling her through tears how she could not afford a smartphone or internet access.
“Asylum is not something you schedule when you are fleeing for your life,” Rivera said.