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The Texas Tribune
The Texas Tribune
By Alejandro Serrano

Texas immigrants’ rights groups sue Biden administration over asylum restrictions

A Texas National Guard Soldier stands guard next to concertina wire along the U.S.-Mexico border in El Paso, Texas, as seen from Ciudad Juarez, Chihuahua state, Mexico on May 27, 2024.
A Texas National Guard soldier stands guard next to concertina wire along the U.S.-Mexico border in El Paso, as seen from Ciudad Juárez, Mexico, on May 27, 2024. (Credit: Paul Ratje for The Texas Tribune)

Two immigrants' rights groups in Texas sued the federal government Wednesday over a new presidential order that temporarily stopped granting asylum to migrants in virtually most circumstances.

President Joe Biden’s order, issued a week ago, largely suspends noncitizens’ entry into the country whenever the number of migrants entering the country illegally is high.

“President Biden’s recent executive order flies in the face of our entire asylum system and has no cognizable basis to support it,” said Jennifer Babaie, director of advocacy and legal services for El Paso-based Las Americas Immigrant Advocacy Center, one of the groups behind the lawsuit. “By doing this, the president has managed to further penalize vulnerable individuals and families seeking protection and violated our laws.”

According to the order, the limit on asylum requests will be lifted two weeks after the average daily number of migrant encounters between all official ports of entry has dropped below 1,500 for seven days in a row. The restrictions will resume when that number goes above a daily average of 2,500 encounters for seven consecutive days. The threshold was met immediately when the order was issued a week ago.

Wednesday’s lawsuit alleges the new rule violates statutes that permit migrants to apply for asylum “whether or not” they arrive at an official port of entry.

The suit also says the policy “blatantly violates the plain language” of federal government code that says a migrant who is physically in the U.S. may apply for asylum. The order excludes “an entire group of asylum seekers from access to that protection because of where they entered the country,” the suit says.

In addition, the suit alleges the new rules create illegal regulations regarding the screening of migrants.

Immigration officers previously screened noncitizens to determine if they intended to apply for asylum and then determined if the person had a credible fear of torture or persecution. Now a migrant can be quickly removed unless they “manifest” a fear of persecution or torture — without being asked if they have a fear. The new rules’ screening standard requiring a “reasonable probability” of torture or persecution instead of the previous “significant possibility” standard is more stringent, according to the suit.

“In practice, noncitizens who have just crossed the border, and may be hungry, exhausted, ill, or traumatized after fleeing persecution in their home countries and danger in Mexico, are likely to be intimidated by armed, uniformed Border Patrol officers, and are thus unlikely to ‘manifest’ their fear of return,” the suit states. “Experience shows that, when in the past a ‘manifestation of fear’ standard or similar directives not to ask about fear of removal were imposed, asylum seekers’ fear of return has gone unrecognized.”

The lawsuit alleges that the exception criteria to Biden’s proclamation is too narrow. People exempted from the policy include permanent U.S. residents, unaccompanied children, trafficking victims and migrants who secure an appointment with U.S. officials. Migrant rights advocates have criticized the phone app used to make those appointments saying it’s already overwhelmed.

The suit was filed in Washington D.C. on behalf of Las Americas and the San Antonio-based Refugee and Immigrant Center for Education and Legal Services. They are being represented by several law groups, including the American Civil Liberties Union — which last week vowed to challenge the order in court — and the Texas Civil Rights Project.

A legal challenge to Biden’s order was widely expected. In Texas, the proclamation was condemned by members of both parties. Some Democrats said the order went too far; Republicans blasted the order for being too late and called it an attempt to provide political cover in an election year largely being defined by immigration issues.

The suit names a dozen agency and administration officials — including the Department of Homeland Security and its secretary, Alejandro Mayorkas — as defendants.

Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!

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