This article was originally published on abajournal.com.
Updated: The American Civil Liberties Union and the ABA are among the groups opposing President Joe Biden’s executive order curbing asylum eligibility for migrants who illegally cross the southern border during peak periods.
ABA President Mary Smith said in a statement Wednesday the ABA “strongly opposes” the executive order, which “effectively seals the southern border” when illegal border crossings exceed a seven-day average of 2,500.
The ACLU said Tuesday it will challenge the policy in a lawsuit.
The executive order “was illegal when [former President Donald] Trump did it, and it is no less illegal now,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, in a press release.
The new policy makes it more difficult for migrants entering the country illegally during peak periods to be referred for a “credible fear” screening with an asylum officer and to prove that they are entitled to remain here because of a fear of persecution or torture.
The Biden administration contends that its new policy is different than Trump’s because it applies only when illegal border crossings are high and because it contains more exemptions to address humanitarian concerns, the Wall Street Journal reports.
In a proclamation, Biden criticized Congress for failing to approve bipartisan legislation to increase funding for immigration enforcement and streamline the asylum process. Change is needed, Biden said, because the immigration system is “broken,” and the government’s capacity at the border is “severely strained.”
The asylum restrictions are detailed in an interim final rule from the U.S. Department of Justice and the Department of Homeland Security.
The new restrictions apply when the number of people entering the country illegally exceeds 2,500 per day, on average, in a week’s time, according to the New York Times, the Wall Street Journal, fact sheets here and here and a transcript of a background press call. They will be lifted when the seven-day average of illegal crossings falls below 1,500 for two weeks.
On Monday, about 3,500 people crossed the border illegally, “in line with the trends of recent weeks,” according to the New York Times, which cited a person with knowledge of the data.
The executive order applies to people who cross the border illegally. It does not apply to people seeking a lawful path to enter the United States or to those who come through at a port of entry using the CBP One mobile app created by U.S. Customs and Border Protection.
The app permits only 1,400 appointments per day, which leaves asylum-seekers waiting weeks or even months for an appointment, according to the Wall Street Journal.
The new policy makes three key changes when illegal border crossings exceed the 2,500 level, according to a DHS fact sheet, the media backgrounder and the New York Times.
First, people entering the country illegally will generally be ineligible for asylum “absent exceptionally compelling circumstances,” the DHS fact sheet says.
Second, illegal border crossers will not be referred for a credible fear screening with an asylum officer unless, without prompting, they seek asylum, express a fear of returning to their countries, or express a fear of persecution or torture. This is known as the “shout test,” according to the New York Times.
Third, illegal border crossers who express a fear of returning to their countries but can’t claim asylum under the new rule will be screened under international law obligations. They will have to show a reasonable probability of persecution or torture, a substantially higher standard than the one currently used.
Some people are exempted from the new rule. They include lawful permanent residents, unaccompanied children, victims of a severe form of trafficking, those facing acute medical emergencies, and those with valid visas or other permission to enter the United States.
Those subjected to the new rule who don’t meet its standards for asylum eligibility will be quickly removed and barred from reentry for five years.
In her statement, Smith said the new policy “violates critical provisions of the Immigration and Nationality Act, international law and due process.” It also “jeopardizes the safety of thousands of vulnerable individuals and families on both sides of the border and diminishes America’s longstanding role as a sanctuary for the oppressed,” she said.
“The ABA urges Congress to repair our broken immigration system with comprehensive immigration reform legislation that offers realistic and fair solutions,” Smith continued. “We urge the administration to abandon this order and adhere to laws ensuring fair treatment and due process for asylum-seekers and to create an effective, sustainable and humane approach to our immigration and asylum policies.”