A coalition of immigrant advocacy groups filed a lawsuit on Wednesday against the Biden administration over President Joe Biden’s recent directive, which is effectively halting asylum claims at the southern border. They argue that this directive closely mirrors a previous action under the Trump administration, which was previously stopped by a court order.

The American Civil Liberties Union (ACLU) and other groups, representing Las Americas Immigrant Advocacy Center and Raices, have filed the first legal challenge against Biden's extensive border policies.

“By enacting an asylum ban that is legally indistinguishable from the Trump ban we successfully blocked, we were left with no choice but to file this lawsuit,” said Lee Gelernt, an attorney for the ACLU.

Biden's order, issued last week, limits asylum processing when daily encounters between ports of entry reach 2,500. It took effect immediately on June 5, as recent figures were around 4,000 daily. Biden administration officials anticipate record levels of deportations.

The restrictions will remain in place until two weeks after daily encounters between ports of entry average of 1,500 or fewer over seven days. However, it is uncertain when this number will be reached, as the last occurrence was in July 2020 during the COVID-19 pandemic.

Advocates argue that suspending asylum for people who do not arrive at a designated port of entry – which the Biden administration is trying to push people to do – violates existing federal immigration law, among other concerns.

Trump, Biden on the same page 

Biden invoked the same legal authority used by the Trump administration for its asylum ban, which comes under section 212(f) of the Immigration and Nationality Act. That provision allows a president to limit entries for certain people if their entry is deemed “detrimental” to national interest.

He has repeatedly criticized Trump’s immigration policies as he campaigns, and his administration argues that his directive is different because it includes several exemptions for humanitarian reasons.

Under Biden’s directive, individuals arriving at the border who "do not express a fear of returning to their home countries" will be subject to immediate removal from the United States, potentially within days or even hours. These individuals could face penalties, including a five-year re-entry ban or criminal prosecution.

Meanwhile, those who express fear or an intention to seek asylum will be screened by a US asylum officer using a higher standard than previously applied. If they pass the screening, they can pursue more limited forms of humanitarian protection, such as under the UN Convention Against Torture, which prohibits returning individuals to a country where they are likely to face torture.