ACLU sues to block Biden policy limiting asylum at the southern border

A man in uniform walks past a line of people outdoors.
U.S. border patrol agents process a group of 30 migrants who have been waiting to cross into the United States from Tijuana on May 11, 2023.
(Carolyn Cole / Los Angeles Times)

The American Civil Liberties Union filed a lawsuit in federal court in Northern California on Thursday aiming to block a Biden administration policy set to limit asylum for those who cross the border without authorization.

The policy, which is set to take effect late Thursday, limits asylum from migrants who cross through a third country on the way to the U.S. and do not seek protections on the way to the southern border.

The ACLU, along with the UC Hastings Center for Gender and Refugee Studies, and the National Immigrant Justice Center, wrote in the filing that the new policy was unlawful.


“After campaigning on a promise to restore our asylum system, the Biden Administration has instead doubled down on its predecessor’s cruel asylum restrictions,” the lawsuit reads. “The agencies claim the Rule merely provides consequences for asylum seekers circumventing lawful pathways. But seeking asylum is a lawful pathway protected by our laws regardless of how one enters the country.”

The Trump administration previously attempted to bar asylum for migrants who crossed into the U.S. without authorization and did not seek protections in another country on their journey, but the policy was blocked in federal court. The Supreme Court later stayed the order. The groups said the new policy resembles past Trump asylum bans.

“The Rule operates just as the Trump administration’s prior asylum bans did: Asylum seekers subject to the Rule — all non-Mexicans — are categorically barred unless they satisfy one of the enumerated and limited conditions or exceptions,” the lawsuit read. “That’s a simple ban with narrow exemptions, and it turns the asylum process on its head.”

It is one of the main efforts the Biden administration has set up to handle the increase in migrants at the U.S.-Mexico border after the Thursday night expiration of Title 42, a policy implemented by the Trump administration at the start of the COVID-19 pandemic.

A DHS spokesperson said in a statement that the administration had “led the largest expansion of lawful pathways in decades.”

“This rule seeks to incentivize migrants to use lawful pathways instead of taking the dangerous journey to unlawfully cross the southern border,” the statement read. “This rule responds to the elevated encounters we are experiencing at the border and is critical to creating an orderly process to seek protection in the United States at a time when Congress refuses to reform our broken immigration laws or provide the necessary funds to hire sufficient asylum officers and immigration judges to process claims in a timely manner.”


The Biden administration is also facing lawsuits from those on the right, including in Florida, where a federal judge blocked the Biden administration on Thursday from quickly releasing migrants from Border Patrol custody without court notices. The lawsuit was brought by the Florida attorney general’s office.

In the lead-up to the end of Title 42, there has been an increase in migration at the southern border. On Tuesday, border agents apprehended more than 10,000 migrants, according to internal data obtained by The Times. U.S. Customs and Border Protection had more than 28,000 migrants in custody as of Wednesday, the data showed.

Attorneys for the federal government urged the court to not block the administration’s recent effort to relieve facilities by releasing migrants without a court notice but directing them to check in with an Immigration and Customs Enforcement office. The memo, signed Wednesday by Border Patrol Chief Raul Ortiz, allowed officials to release migrants from their facilities if there were an average of 7,000 arrests a day over a three-day period along the border, or if facilities were over a certain level of capacity.

The government warned that without that power, or other efforts, there would be even higher levels of crowding in government custody.

“At the current operational pace, and without any additional measures such as Parole with Conditions, USBP would have over 45,000 individuals in custody by the end of the month. Further, the [U.S. Department of Homeland Security] Chief Medical Officer has concluded that ‘current conditions pose an increased risk of adverse health outcomes,’” the filing from the Department of Justice lawyers read.

Judge T. Kent Wetherell, who was appointed to the district court by former President Trump, issued the temporary restraining order. It will be in place for two weeks.


“This is a harmful ruling that will result in unsafe overcrowding at CBP facilities and undercut our ability to efficiently process and remove migrants, and risks creating dangerous conditions for Border Patrol agents and migrants,” said a U.S. Customs and Border Protection statement released in response to the order.

The Biden administration is encouraging migrants to seek appointments at ports of entry to enter the U.S. and seek asylum, as well as to apply for a program that allows migrants from Cuba, Venezuela, Haiti and Nicaragua the chance to enter the country if they have a financial sponsor and can pass security checks.