Home News Federal Judge Blocks Biden Administration’s New Asylum Policy

Federal Judge Blocks Biden Administration’s New Asylum Policy

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Federal Judge Blocks Biden Administration’s New Asylum Policy


A federal judge struck down on Tuesday a stringent new asylum policy that the Biden administration has called crucial to its efforts to curb illegal crossings along the U.S.-Mexico border.

The ruling was a blow to the White House, which has seen unlawful entries plunge since the new policy was put in place in May. But the policy has been far from the only factor in the dramatic decline in crossings, and how the ruling on Tuesday will affect migration, if it stands, is uncertain.

The judge, Jon S. Tigar of the U.S. District Court in Northern California, immediately stayed his decision for 14 days, leaving the asylum policy in place while the federal government appealed the decision. The appellate court could extend the stay while it considers the challenge.

Under the policy, most people are disqualified from applying for asylum if they have crossed into the United States without either securing an appointment at an official port of entry or proving that they sought legal protection in another country along the way.

Immigrant advocacy groups who sued the administration said that the policy violated immigration law, which says that foreigners who reach U.S. soil are entitled to request asylum, regardless of how they entered the country.

Judge Tigar, in a 35-page decision, said he had found the policy, which had been in effect since May 12, “both substantively and procedurally invalid” and he noted that in 2019, he struck down a similar rule put in place by the Trump administration.

“The court concludes that the rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum,” the judge wrote.

But the situation on the southern border has changed considerably in recent months. Mexican authorities have stepped up efforts to turn back migrants trying to reach the United States, and a new app rolled out by the U.S. government this year has provided an orderly way for people seeking asylum to be processed into the country at the southern border.

The Biden administration introduced the asylum rule when it ended a public health measure known as Title 42, under which illegal crossers were swiftly expelled. Since then, the number of migrants apprehended at the southern border has plummeted: In June, fewer than 100,000 people were arrested, the lowest figure since February 2021.

Civil rights groups lauded the judge’s decision, but said that migrants remained vulnerable as long as the rule remained in place.

“The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” Katrina Eiland, deputy director of the Immigrants’ Rights Project of the American Civil Liberties Union, who argued the case for the plaintiffs, said in a statement.

The Homeland Security secretary, Alejandro N. Mayorkas, said the administration strongly disagreed with the decision. With the policy still in place while the decision is appealed, he added, migrants who did not follow the current rule would face stiff consequences.

The strategy of returning to the same judge who found the Trump administration’s rule unlawful paid off for immigrant advocates, said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, a nonpartisan research group.

The plaintiffs argued that the rule was procedurally unlawful because the public had not been given enough time to comment on it. Judge Tigar, nominated by President Barack Obama, agreed, writing that the administration had failed to comply with the Administrative Procedure Act, which mandates adequate opportunity for public comment.

The administration argued in court that the policy had prevented chaos at the border and that unlawful crossings would spike if it were rescinded, straining government resources and creating dangerous conditions like overcrowding in migrant processing facilities.

The end of Title 42 had led to predictions from many quarters, including from the Biden administration itself, of a new surge in border crossings. But a surge had already been happening in the weeks before Title 42 ended, and the weeks after saw strikingly few crossings.

The administration credited a range of policies, including the new asylum rule, for helping prevent surges in migrants.

Mexican authorities have been intercepting some migrants who cross into Mexico from the south, and have been returning them to Guatemala or otherwise preventing them from journeying north to the U.S. border.

New U.S. programs have enabled several hundred thousand people to legally enter this year for stays of at least two years, provided they have a financial sponsor or an active visa application to reunite with relatives.

Asylum seekers already near the U.S.-Mexico border are instructed to use a U.S. government app to schedule an appointment to present themselves at land ports of entry. While the program has some glitches, and many people wait months for an open slot, the number of appointments available has steadily increased, to about 40,000 a month. And the policy has helped calm the border, where federal agents apprehended 2.4 million people fleeing poverty, political repression and violence in the 2022 fiscal year, which ended on Sept. 30.

Judge Tigar was not swayed, however, by the administration’s new legal alternatives, or parole programs, saying that they were not “meaningful options” for many people seeking asylum.

“The rule generally relies on the parole programs for Cuban, Haitian, Nicaraguan, Venezuelan and Ukrainian nationals,” he wrote. “These programs are country-specific and are not universally available, even to the covered populations.”

The contested rule presumptively denies asylum to those who have entered the United States illegally. Migrants apprehended at the border face expedited removal, unless they can justify being exempt from the policy — often without time to secure a lawyer to help them.

The odds of ultimately securing asylum are low, but asylum seekers can live in the United States while their cases are pending in the backlogged courts.

“Once in the immigration court system, they are eligible for employment authorization,” Blas Nuñez-Neto, a senior official at the Homeland Security Department, said last week. “That means they have years to live in the U.S. and earn money and support families back home,” he said during a discussion hosted by the Migration Policy Institute. “All these factors are drawing people.”

There are more than two million pending cases in immigration court, and about four out of 10 are asylum applications. Speaking at the Migration Policy Institute event, David Neal, director of the Executive Office for Immigration Review at the Justice Department, estimated that for the current fiscal year, about one million new cases would be filed. Though new judges have been added and the process has been streamlined, he said, the courts would probably complete only about 500,000 cases for the year.

Seamus Hughes contributed reporting.

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