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EAST BAY SANCTUARY COVENANT V. BIDEN COMPLAINT

BREAKING NEWS (August 3, 2023): A federal appeals court said the Biden administration’s new asylum ban, which was ruled illegal by a federal judge on July 25, could remain in effect as the appeal undergoes a speedy review schedule.

July 25, 2023: A federal judge blocked the Biden Administration’s asylum ban – a victory for EBSC and other immigrant advocacy groups who have been fighting to protect the constitutional right to seek asylum. The decision is on hold for 14 days to allow for the Administration to make its appeal.

May 12, 2023: On behalf of East Bay Sanctuary Covenant and other immigration services organization, the ACLU, Center for Gender & Refugee Studies, and National Immigrant Justice Center filed a legal challenge–EBSC v. Biden–in response to the Biden Administration’s most recent asylum ban.

EBSC V. BIDEN – OVERVIEW

“The Biden Administration’s new asylum ban is illegal and inhumane. Just as we sued the Trump Administration, EBSC will continue to fight to defend the right to apply for asylum as guaranteed by U.S. law and the 1951 Refugee Convention.”

– Mike Smith, EBSC Director of Refugee Rights

KEY POINTS

Biden’s asylum ban prevents asylum protection for many individuals who did not apply for asylum in a “transit country.” 

  • Refugees are required to seek asylum in “transit countries” that have no formal agreement with the U.S. and where refugees ARE NOT SAFE, thereby circumventing U.S. law requirements for safe third countries.

Biden’s asylum ban prevents refugees from entering at a port of entry without using the new CBP One mobile application.

  • CBP One has racial bias in its facial recognition technology and is inaccessible to many Indigenous, African, and other asylum seekers due to language barriers. There are also insufficient appointments available through CBP One.

Asylum seekers would be stranded indefinitely in Mexico in dangerous and life-threatening conditions.

  • In Mexico, there have been over 13,000 attacks reported against asylum seekers stranded under the Title 42 policy over the past two years alone. Refugees do not have access to fair asylum procedures in Mexico, where many are at risk of deportation to persecution in their home countries. Black migrants face pervasive anti-Black violence and harassment, including widespread abuse by Mexican authorities.
  • El Salvador, Honduras, and Guatemala do not have functional asylum systems that can protect large numbers of refugees and many transiting through these countries face extreme dangers, including gender-based violence, anti-LGBTQI+ attacks, race-based violence, and/or other persecution.

END OF TITLE 42

On May 11, 2023, Title 42 came to an end  – a victory for immigrants who since 2020 have been denied their international and constitutional right to seek asylum at the U.S. border. Under Title 42, the Trump Administration used “concern for public health” as an excuse to deport hundreds of thousands of immigrants to Mexico and worsen the public safety conditions they claimed to be solving. 

Now, the Biden Administration is reverting to pre-pandemic immigration policy. This means more border patrol agents handling the influx of migrants at the Southern Border, more migrants in detention centers waiting for their claims to be processed, and more barriers to resettlement and family reunification. 

Rather than spend more money on militarizing the border and holding migrants in detention, the U.S. must offer more humane systems for people to apply for asylum and take an active role in addressing the economic and governmental destabilization that cause migrants to flee in the first place.

LEARN MORE & TAKE ACTION:

Learn about other EBSC litigation to defend asylum laws and policies:

FEE RULE LAWSUIT

“The Fee Rule is another example of the current administration’s racial bias. It disproportionately harms low-income immigrants who are overwhelmingly people of color. It will create a purely financial barrier to the progress of immigrants’ integration in the U.S., delaying or precluding status that is critical to safety, security, and protection. These unnecessary and unfounded changes will cause hardship for hundreds of hardworking, Bay Area immigrants and mixed-status families, including U.S. citizens. Our clients should not have to pay outrageous fees to achieve safety and protection under U.S. and international asylum law.”

– Michael Smith, EBSC’s Director of Refugee Rights

  • This Rule imposes a fee for first-time asylum seekers contrary to the Constitution and the Immigration and Nationality ACT which affirm that filing for asylum should be free. Asylum seekers often have been forced to flee for their lives to escape persecution and arrive in the U.S. with nothing more than the clothes on their backs. When they arrive, they are not immediately authorized to work and thus have no legal way of earning money. Asylum seekers often are dealing with physical injuries and psychological trauma from the persecution they have endured and the journeys they have undertaken to arrive to safety, which leaves them in a particularly vulnerable position.
  • EBSC serves people who are extremely poor and are unable to pay these exorbitant fees. Our clients already struggle to provide for their basic needs, including housing and food. Many earn minimum wage and struggle to make ends meet with the high cost of living in the Bay Area. 
  • Eligible EBSC clients will not be able to afford to become U.S. citizens. Under the Rule, the cost to naturalize would rise to $1,170 for a single application, an amount roughly equal to a month’s gross income for an immigrant making the federal minimum wage. Most of our clients would need years to accumulate the savings needed to cover the $1,170 fee per application. 
  • The Rule makes it prohibitively expensive to obtain a work permit, putting our clients in a “catch 22” where they are not able to work. The Rule imposes a new $580 fee on first-time applications for work permits — an impossible fee for our asylum clients, who need to be able to work to provide for themselves and their families. When they are unable to work, they suffer from housing instability and food insecurity, which takes a further psychological toll on them. Being unable to work lawfully also makes them uniquely vulnerable to domestic violence and predatory practices. 
  • The Rule eliminates fee waivers for many of our clients, contrary to the Constitution and the Immigration and Nationality ACT, because it does not consider an applicant’s ability to pay. Without fee waivers, it will take years for families to save this money to be able to apply for residency. As legal service providers, our task of helping these families will be much more complicated and time consuming. 
  • The Rule will effectively double the fees for people with DACA. Previously, work permits were valid for two years; under the new rule, they will only be valid for one year. Paying this doubled fee will be difficult or impossible for many of our DACA clients, especially during this pandemic. 
  • DHS has not been able to justify these fee increases, and is illegally diverting USCIS funding for enforcement purposes.  
FEE RULE LAWSUIT Overview
EBSC v. Trump & EBSC V. BARR

EBSC V. TRUMP

In November 2018, when the Trump administration tried to deny asylum rights to anyone who couldn’t reach an official port of entry – a potential death sentence for thousands of people – we took them to court.

Status: PENDING. We won a temporary Supreme Court injunction, but expect a prolonged court battle and need the resources to see it through.

Why does EBSC v. Trump matter?

The words on the Statue of Liberty — “Give me your tired, your poor, your huddled masses yearning to breathe free…” – exemplify core values for our country and illustrate why EBSC exists. 

Founded in 1982, EBSC has one of the largest asylum programs in the country and has filed almost 4,000 asylum cases with an over 97% success rate – demonstrating that our clients have legitimate cases that are being approved by the U.S. government. 

This attack is another example of the Trump administration rewriting the law to discriminate against refugees of color from poor countries.

EBSC V. BARR

In July 2019, we joined a new ACLU-led lawsuit challenging the administration’s racist and unlawful ban on people seeking asylum if they passed through a third country to reach the U.S.

Status: PENDING. We won another injunction, but in September 2019, the Supreme Court issued a devastating decision to remove it. In a parallel case to EBSC v. Barr, on June 30, 2020, Judge Kelly held in I.A. v. Barr that the government violated the APA’s notice and comment requirement and vacated the rule. Soon after this decision, the 9th Circuit ruled in EBSC’s favor on the preliminary injunction, allowing us to file for asylum clients who transited through other countries. There could be a negative impact if the cases are overturned on appeal, but we will warn our clients and let them decide if they want to move forward with their cases. 

Why does EBSC v. Barr Matter?

  • The administration’s rule is clearly unlawful. While this lawsuit is working its way through the appeals process, there is a desperate need to have a nationwide injunction so that asylum seekers are not sent back into life threatening danger while this case is being litigated. The stakes in this case could not be higher. This case would effectively end asylum at the southern border for everyone except Mexicans. 
  • The Trump administration’s attempts to dismantle asylum protections upend four decades of law. Since enacting the asylum statute in 1980, Congress has made it absolutely clear that you can apply for asylum in the U.S. even if you did not enter through a legal port of entry or if you transited through another country. The Trump administration’s policies are racist and xenophobic, harming primarily refugees of color who are fleeing atrocious persecution and violence
  • Nearly all of EBSC clients are victims of atrocious forms of persecution – 80% have been raped or sexually abused, including male and female children.