Immigrants' rights advocates are suing the Biden administration over a new asylum ban that they say "largely mimics" Trump-era policies that have been blocked by the courts. The lawsuit comes at a time of heightened focus on the U.S.-Mexico border, as the controversial Title 42 officially expires.
Title 42—a measure that dates back to 1944 but was reinstated by the Centers for Disease Control at the height of the pandemic under then-president Donald Trump—has been used for the past three years to stem the flow of immigration. Under Title 42, U.S. government authorities were authorized to swiftly expel migrants at U.S. land borders to prevent the spread of diseases, namely, COVID-19.
It remained in place while other COVID-19 measures were dropped but came to an end on May 11. Critics claimed the scheme was being used as a blunt tool to prevent migration to the U.S. and was preventing asylum seekers from reaching safety. According to CNN, Title 42 was used to turn back around 2.5 million migrants between March 2020 and November 2022.
The end of the policy has been accompanied by a surge in the number of migrants arriving at the border and hoping to claim asylum in the U.S. Mexican government data quoted by the New York Times shows that tens of thousands of migrants have crossed Mexican territory to reach the U.S. border since early April.
Officials in Southern states, such as Texas Governor Greg Abbott, have warned of the potential chaos that could follow the end of Title 42, as the termination of the measure could be seen as encouragement for migrants to cross the border into the U.S.
But Title 42 is now being replaced by the pre-existing section of U.S. code known as Title 8. This has more severe consequences for migrants who do not qualify for entry into the country as they will not only be deported, but will also be banned from re-entering the country for at least five years.
The Biden administration has also introduced a new policy, which is the one immigration rights advocates are now criticizing—and suing Biden for.
Part of the Biden administration's new border policy is a rule which considers migrants ineligible to seek asylum in the U.S. if they've passed through another country before reaching U.S. land borders. An exception is made for migrants who have secured an appointment through the CBP One App, according to officials.
The rule, proposed earlier this year, will presume migrants are ineligible for asylum in the U.S. if they didn't first seek refuge in a country they transited through, like Mexico, on the way to the border.
Migrants who secure an appointment through the CBP One app will be exempt, according to officials. But immigration rights advocates argue that appointments are "scarce" and the mobile application used to obtain them "flawed."
If migrants are found ineligible for asylum, they could be removed through the speedy deportation process known as "expedited removal" that would bar them from the U.S. for five years.
The American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies and National Immigrant Justice Center have jointly filed a legal challenge to the Biden administration over its new border policy.
"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, in a statement.
"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."
Newsweek has contacted the White House for comment by email.
