Biden DOJ Seeks to Maintain Border Officials’ Power to Turn Back Asylum Seekers

On Tuesday a Justice Department attorney argued in support of U.S. immigration officials’ authority to limit the number of asylum seekers allowed to cross the southern border, Politico reported.

That occurred even though President Joe Biden’s administration attempts to distance itself from the Trump administration’s policy that limits the number of migrant entrants at the border.

The Justice Department’s Office of Immigration Litigation lawyer Alexander Halaska told U.S. District Court Judge Cynthia Bashant in San Diego that the administration was reassessing the policies of turning back migrants seeking asylum, Politico reported.

Halaska said the policies were designed to “prevent operational emergencies” that overwhelm border facilities, creating dangers and unsanitary conditions for both migrants and border officials, Politico reported.

“The metering policies are geared towards preventing those emergencies before they occur,” said Halaska, adding that the policies were under review and revised guidelines were expected within 60 days.

Stephen Medlock, attorney for the immigrant rights group Al Otro Lado, said evidence in a case filed in 2017 showed the policy was not linked to urgent demands, and it was even applied when facilities had ample space.

“As a factual matter, there are no operational emergencies in the record before you,” Medlock told the judge.

“I don’t think the government’s commitment to withdraw those memos should have any effect in this case [intended] to keep the government from ever doing this again.”

The main problem with the policy, Medlock said, was that it allowed the executive branch to impose limits on asylum rights that Congress never restricted.

“Once an asylum seeker is in the process of arriving in the United States, they must be inspected and processed,” Medlock said. “An executive branch agency is not allowed to amend a statute simply because it isn’t working out for them.”

Bashant appeared to agree with the immigrant rights lawyers that the use of metering migrants violated statutes by Congress.

“Don’t you have to go to Congress and say, ‘Change this statute. We can’t comply with it?'” Bashant asked Halaska.

“The government hasn’t abandoned its statutory obligations,” Halaska said, noting that immigration officials processed more migrants each year from 2017-19.

Bashant, appointed by then-President Barack Obama, questioned the attorney’s response.

“That’s an abstract number. You don’t know how many sought asylum and didn’t have access,” the judge said.

In the class-action case of Al Otro Lado v. McAleenan, Bashant is being asked to decide whether the turnback policy violates the international “norm” of non-refoulement enshrined in the Alien Tort Statute, Courthouse News reported.

The international legal principle — adopted after the Holocaust — forbids a government from returning a person to a country where he or she has a well-founded fear of persecution, torture, or harm.

Bashant issued no ruling Tuesday.

The Biden administration continues to rely on Title 42, imposed by the Trump administration as a public health policy to expel migrants due to the COVID-19 pandemic.

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