Las Americas Immigrant Advocacy Center v. DHS

The Biden administration took office promising to restore a humane asylum system at the U.S.-Mexico border and turn the page on the Trump administration’s cruel and deadly policies. The administration pledged to uphold our nation’s obligations under the Refugee Act, which governs the U.S. asylum system and sets out protections for people fleeing persecution and danger. The law expressly provides that anyone who arrives in the United States may apply for asylum, regardless of how they entered the country.

On June 4, 2024, President Biden issued a proclamation, along with an accompanying interim final rule issued by the Department of Homeland Security and the Department of Justice, that directly contravene this statutory mandate.

The proclamation and rule purport to “secure the border” by suspending access to the asylum process for people seeking safety. Subject to only a few narrow exceptions, the shutdown allows asylum access only for people who can secure a scarce appointment via a smartphone app to present themselves at a port of entry, whenever average border encounters rise above an arbitrary threshold of 2,500 people per day. This has left countless asylum seekers trapped in danger in northern Mexico, with no way to access protection.

As average daily encounters currently exceed the threshold set by the new rule, an asylum shutdown took immediate effect at 12:01 am on June 5, without the opportunity for notice and comment, in violation of the requirements of the Administrative Procedure Act. These executive actions will neither deter people fleeing for their lives from trying to seek safety, nor will they resolve operational challenges at the border. They will, however, result in the unlawful return of refugees to countries where they face persecution.

The asylum shutdown rule recycles several elements of the administration’s prior “Circumventing Lawful Pathways” rule, dubbed the “asylum ban” by advocates, which was vacated as unlawful by a federal judge. (That litigation is currently being held in abeyance.) The rule also repackages the Trump-era “entry” ban, which denied asylum to anyone who did not seek protection at an official port of entry, and was struck down by the courts as unlawful.

In addition to imposing a bar to asylum, the rule eviscerates protections for immigrants who may still be eligible for lesser forms of relief. Under procedures that have governed the asylum system for nearly 30 years, before the government can deport someone through the expedited removal system, they must screen them to determine whether they have a “credible fear” of returning to their country of origin. The new policy does away with this protection and instead imposes a “shout test,” requiring people to proactively express their fear and convince an immigration officer to refer them for a credible fear screening. In practice, the shout test has deprived people fleeing danger of any semblance of a fair process. For those who pass the shout test, the rule imposes a higher—and undefined—standard of proof that people must meet in order to pass the screening interview and have their claims considered by an immigration judge.

Other harmful policy changes compound the devastating impact of the new policy. People in immigration detention who are referred for a credible fear interview will have less time—just four hours— to prepare and attempt to consult with counsel. These changes will make it nearly impossible for people to access legal help. They will also place a tremendous burden on the legal services providers at the border attempting to provide legal orientation and representation to people seeking protection.

The application of the rule in credible fear interviews and the related policy changes make a mockery of Congress’ intent in enacting the laws that govern the asylum process. We are arguing that Biden’s asylum shutdown and the related policy changes violate our asylum laws and result in the unlawful return of people to countries where their lives are in danger.