Manifestly Illegal
Biden's Asylum Ban. Just Like Trump's.
Much is being made about the drop in numbers of unauthorized crossings, and asylum requests, at the southern border. Whether the drop is due to recent Biden policy moves, or to other factors, is an open question.
The purpose of this post is to explain, in layperson’s terms, why Biden’s Asylum Ban, as I call it, is the same as Trump’s Asylum Ban, and equally illegal. (Apologies in advance to my lawyer pals for any oversimplification or errors; comments welcome.)
To set the stage, I think about a statement made by a friend (a good progressive and retired attorney) who said that Biden had to “do something” about the border. I’m all in favor of doing the right thing. I’m not in favor of breaking the law.
In simplest terms, the Biden Policy violates very clear, plain English, statutory law. The statute says: “Any [noncitizen] who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such [noncitizen’s] status, may apply for asylum.”
In contrast, the Biden Policy requires asylum seekers to apply only at designated ports of entry, and to use an “app” called CBP One to make an appointment. As the plaintiffs in the leading lawsuit say, “the Rule effectively eliminates asylum for virtually every noncitizen who crosses into the United States without first obtaining an appointment at a port of entry using the CBP One app, in violation of the statute.” In addition, asylum seekers “must now “manifest” an intent to apply for asylum or a fear of return before receiving a credible fear interview.”
Trump tried the same tactic, but the courts turned him down. As the plaintiffs say, “Courts have emphatically rejected prior rules virtually identical to this one, and Defendants’ recycled arguments are just as unpersuasive this time. [Emphasis mine.] The Court should follow the well-reasoned opinions in O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) (Moss, J.), Capital Area Immigrants’ Rights Coalition v. Trump, 471 F. Supp. 3d 25, 41 (D.D.C. 2020) (“CAIR Coal.”) (Kelly, J.), E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021), E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018), and E. Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025, 1041-42 (N.D. Cal. 2023), and vacate the Rule and Guidance.”
For the legal nitty-gritty, you can see the key pleadings here and here. Let’s hope the courts chuck the Biden Ban, just as they did the Trump Ban.
You can read all of my previous posts here to learn more. Meanwhile, these folks deserve safety and the rule of law:
