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Rights groups sue Biden administration's new executive actions at U.S.-Mexico border

U.S. Border Crossing at Tijuana
US Border Patrol
U.S. Border Crossing at Tijuana

A group of rights groups are suing the Biden administration over its executive order that restricts asylum requests at the border.

A new policy that went into effect last week restricts migrants from requesting asylum and other forms of protection in the U.S. if the number of people apprehended between ports of entry border-wide surpasses 2500 a day — which has been happening for months.

Melissa Crow is the litigation director for the Center for Gender and Refugee Studies, one of the groups behind the suit. She says that’s illegal under U.S. immigration statutes.

"The immigration law is very clear that the manner in which somebody enters the United States is irrelevant to their ability to claim asylum in the United States," she said. "The President does have a significant amount of discretion under Section 212F of the Immigration and Nationality Act. But it’s not unlimited."

Before the new rule went into effect last week, migrants encountered between ports of entry already faced a higher threshold for getting asylum or other forms of protection, despite international agreements that require that access. Those trying to present at a port of entry must do so with one of a fixed number of daily CBP One appointments, which are available at a handful of crossings border-wide.

Under the latest rule, migrants encountered in between ports of entry are essentially barred from the asylum process with few exceptions, and are instead placed in speedy deportation proceedings.

The lawsuit was filed Wednesday in a D.C. District Court by the National Immigrant Justice Center, the ACLU and the Center for Gender and Refugee Studies. It argues the executive actions violate an Immigration and Nationality Act statute, which states that individuals presently in the U.S. can apply for asylum regardless of how they arrived.

While Congress has placed some limitations on the right to seek asylum over the years, it has never permitted the Executive Branch to categorically ban asylum based on where a noncitizen enters the country," the suit reads.

A White House spokesperson said the executive actions were within the administration’s authorities and were taken because border encounters remain high, and referred further litigation questions to the Department of Justice.

"The Biden-Harris Administration took these actions, within its authorities, because border encounters remain too high and after Congressional Republicans twice voted against a historic bipartisan border security agreement that would have provided critical resources, statutory changes, and additional personnel to the border," Assistant Press Secretary Angelo Fernandez Hernandez said in a statement. "The Administration will continue to enforce our immigration laws – those without a legal basis to remain in the United States will be removed."

A Department of Homeland Security spokesperson said the agency could not comment on pending litigation, but said the rule was lawful and "critical to strengthening border security."

Crow and other lawyers part of the suit are also challenging the policy on procedural grounds, arguing the administration failed to initiate a public comment period and other steps.

Alisa Reznick is a senior field correspondent covering stories across southern Arizona and the borderlands for the Tucson bureau of KJZZ's Fronteras Desk.