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ACLU and ABA Oppose Biden’s Executive Order on Asylum Eligibility
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The American Civil Liberties Union (ACLU) and the American Bar Association (ABA) have voiced strong opposition to President Joe Biden’s executive order that limits asylum eligibility for migrants who cross the southern border illegally during peak periods.

ABA’s Strong Opposition

On Wednesday, ABA President Mary Smith issued a statement expressing the organization’s firm opposition to the executive order. Smith stated that the policy “effectively seals the southern border” when illegal crossings exceed a seven-day average of 2,500. She emphasized that this move undermines key legal provisions and endangers vulnerable individuals.

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ACLU’s Legal Challenge

The ACLU announced on Tuesday that it plans to challenge the executive order in court. Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, argued that the policy is illegal, paralleling the similar policy enacted by former President Donald Trump. Gelernt stated that the executive order remains unlawful despite the changes made by the Biden administration.

Details of the Executive Order

The executive order aims to tighten asylum rules for migrants entering the U.S. illegally during periods of high border crossings. Specifically, it makes it harder for these migrants to qualify for asylum screening and to prove their eligibility for asylum.

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Administration’s Defense

The Biden administration contends that its policy differs from Trump’s because it is only enforced when illegal crossings are high and includes more humanitarian exemptions. According to the Wall Street Journal, Biden criticized Congress for not passing bipartisan legislation to enhance immigration enforcement and improve the asylum process. He stressed that the current immigration system is “broken” and that the government’s capacity at the border is “severely strained.”

New Asylum Restrictions

The new restrictions, detailed in an interim final rule by the U.S. Department of Justice and the Department of Homeland Security, apply when illegal border crossings exceed an average of 2,500 per day over a week. These restrictions will be lifted if the average falls below 1,500 for two consecutive weeks. The New York Times reports that about 3,500 people crossed the border illegally on Monday, consistent with recent trends.



Scope of the Executive Order

The executive order targets individuals who cross the border illegally and does not apply to those seeking lawful entry or using the CBP One mobile app created by U.S. Customs and Border Protection. The app, however, allows only 1,400 appointments per day, resulting in long waiting times for asylum-seekers.

Key Changes Under the New Policy

  1. Eligibility for Asylum: Migrants entering illegally will generally be ineligible for asylum unless they can demonstrate exceptionally compelling circumstances.
  2. Credible Fear Screening: Illegal border crossers will not be referred for an asylum screening unless they explicitly request asylum, express a fear of return, or fear persecution or torture. This requirement is referred to as the “shout test.”
  3. Higher Standard for Asylum Claims: Those who seek asylum must show a reasonable probability of persecution or torture, a higher standard than the current requirement.

Exemptions and Consequences

The new rule exempts certain groups, including lawful permanent residents, unaccompanied children, victims of severe trafficking, those facing acute medical emergencies, and individuals with valid visas or other permission to enter the U.S. Migrants who do not meet the new asylum standards will be swiftly removed and barred from reentry for five years.

ABA’s Call to Action

In her statement, Smith criticized the policy for violating the Immigration and Nationality Act, international law, and due process. She highlighted that the policy endangers thousands of vulnerable individuals and undermines America’s role as a sanctuary for the oppressed. Smith urged Congress to enact comprehensive immigration reform and called on the administration to abandon the executive order in favor of fair and humane immigration and asylum policies.

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