President Joe Biden’s recent executive order aimed at tightening asylum claims is facing immediate legal challenges, particularly from Texas officials who argue that the policy contradicts the administration’s earlier legal positions.
Texas’ Legal Battle Over Border Security
On Thursday, Texas Solicitor General Aaron Nielson presented arguments before a panel of the 5th Circuit Court of Appeals, asserting that Biden’s executive order undermines the Justice Department’s previous legal stance in a case brought by Governor Greg Abbott. The state of Texas is fighting to maintain concertina wire along a stretch of the U.S.-Mexico border.
“They told the district court and this court and the Supreme Court, essentially the toehold theory: If you get one toe into the United States, you are entitled to the asylum process. That is not consistent with what the president said two days ago, that … they can turn off the asylum process, if too many people are trying to come into the country,” Nielson argued in the New Orleans court session.
Biden’s Executive Order on Asylum Claims
Under the new executive order, which took effect at 12:01 a.m. Wednesday, the U.S. government will suspend the right to claim asylum—except in limited circumstances—if the number of apprehensions between ports of entry exceeds 2,500 people for seven consecutive days. This suspension will remain until the number drops below 1,500. The policy does not apply to unaccompanied minors and allows for exceptions in urgent humanitarian cases.
Immigrant rights groups are gearing up to challenge the new rules, arguing that they violate existing laws and treaty obligations. The precise form of these legal challenges is still uncertain, as some existing asylum limits are already being litigated, and suits over Trump-era policies remain active or on appeal.
DOJ’s Defense of the New Policy
Justice Department attorney Melissa Patterson defended the administration’s new policy in court, countering Texas’ claims. She stated that the executive order does not completely eliminate asylum proceedings for all individuals encountered by the Border Patrol after the daily quota is exceeded.
“We simply lack–there is no turn-back authority,” Patterson declared. “Once someone is within the United States, once they have entered and are present to the United States, regardless of whether they have entered unlawfully or whether they’ve entered lawfully at a port of entry, [immigration law] gives folks the right to apply for asylum. Nothing about the proclamation and the rule that accompanied changed that.”
Patterson explained that while the new rule imposes limitations on eligibility, it does not prevent individuals from applying for asylum or being processed.
Ongoing Disputes Over Border Policies
The legal arguments at the 5th Circuit highlight the ongoing tension between Biden’s administration and Republican state officials who believe the current measures are insufficient to control immigration from Mexico. Texas filed a lawsuit against the Biden administration last year, claiming that federal authorities destroyed concertina wire installed by state troops to curb record numbers of asylum seekers at the border.
The Biden administration has argued that the razor wire hampers the Border Patrol’s ability to monitor the border effectively and respond to emergencies such as drownings. In January, the Supreme Court voted 5-4 to allow federal officials to cut through the wire, but this decision did not prevent the 5th Circuit from granting other forms of relief to Texas as the litigation progresses.
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