Biden's asylum order likely to meet resistance from courts

President Joe Biden's executive order limiting asylum claims is already drawing ire from progressives for its resemblance to policies proposed by former President Donald Trump, which were dealt a legal blow by the courts during his administration. Experts predict the new order will likely meet the same fate.

"I think there's a clear legal issue about whether denying people the ability to apply for asylum who may be fleeing persecution is legal under U.S. law, and also under international law," Kevin R. Johnson, dean and professor of public interest law and Chicana/o studies at UC Davis School of Law, said in a phone call on Tuesday. "So, I think that the issues raised are serious, and certainly will end up in litigation very shortly -- and in some ways are less justifiable than Donald Trump's."

The present lack of a public health emergency such as the COVID-19 pandemic meant Biden's order may be even less likely to stand up to legal scrutiny than Trump's order, Johnson said.

"In fact, President Trump was able to close the border based on Title 42 for public health reasons," he said. "It's not really available to the Biden administration."

Any challenge to the order is likely to be filed through the federal district court, Johnson said - although the location and venue remains uncertain.

"I could imagine, D.C., could imagine L.A.," he said. "Various Democratic administrations have had good luck in Los Angeles ... so I wouldn't be surprised if it gets filed there, but D.C. is a place it could be filed too."

The executive order would ban migrants caught crossing the border illegally from seeking asylum, according to a fact sheet released by the White House Tuesday morning, subject to the seven-day average for daily illegal border crossings hitting 2,500. The policy would be suspended once the average number of crossings reached 1500 or less.

Within hours of the announcement, the American Civil Liberties Union announced its plans to issue a legal challenge to the order.

"We intend to challenge this order in court," said Lee Gelernt, deputy director of the union's Immigrants' Rights Project, in a news release on Tuesday. "It was illegal when Trump did it, and it is no less illegal now."

Among the legal challenges likely to be leveled against the order is its potential violation of 8 United States Code Section 1158, which allows immigrants physically present in the United States to apply for asylum regardless of status.

Jean L. Reisz, co-director of the USC Gould School of Law's Immigration Clinic, pointed to a recent report from Syracuse University that two thirds of asylum seekers in immigration court are granted asylum or other immigration relief.

"This means many individuals who are entitled to asylum will be expelled or removed to their home countries without the opportunity to apply for asylum," Reisz said in an email on Tuesday. "It appears noncitizens can still seek other relief like protection under the Convention Against Torture, but they will have to meet a higher burden of proof at the threshold stage to be allowed to remain and apply for that protection."

On the other end of the political spectrum, Reisz said, Biden's order could face challenges from conservatives and those in favor of restricting immigration for having too many exceptions for children, victims of trafficking, and other humanitarian concerns.

Raquel E. Aldana, a Martin Luther King Jr. professor of law at UC Davis, noted that Biden's order, like Trump's, is based on Section 212(f) of the Immigration and Nationality Act, which gives the president authority to suspend entry of aliens if he or she determines their entry would be "detrimental to the U.S. interest."

"Biden would get a lot of leeway in making the assertion that high numbers of asylum seekers entering the border is 'detrimental to the interests of the United States,'" Aldana said in an email on Tuesday. "The problem is that he is also saying that someone who has nonetheless successfully entered the U.S. without authorization is also barred from seeking asylum. This is both contrary to INA 212(f), which only applies to those who are seeking to make an entry and not those who have already effectuated an entry and find themselves in the US, but is also inconsistent (in direct conflict) with our statutory (and international) obligation under INA section 208 (enacted as part of the Refugee Act of 1980) which codifies the right of asylum seekers who reach US soil to seek asylum irrespective of how they arrived."

The order also has the potential to clash with state immigration laws, according to Priscilla Orta, director of Lawyers For Good Government's legal clinic for asylum seekers, Project Corazon. Orta, who is based in Texas, pointed to Gov. Greg Abbott's Operation Lone Star as well as pending State Bill 4, which would prohibit sanctuary city policies that prevent police officers from inquiring as to a person's immigration status.

"The biggest issue is not even this law, this proclamation, but rather, how is it going to interplay with the laws of Texas? And in addition, Arizona is passing similar laws to Texas and many other states are passing similar types of laws," Orta said in a phone call on Tuesday. "So, the question is, how many people are we going to put in jail for 20 years, and how many people are just going to die in Mexico?"