Federal judge Tosses Biden Administration Asylum Rule for Migrants

The Washington Post / Maria Sacchetti

16:02 JST, July 26, 2023

A federal judge in California on Tuesday struck down the Biden administration’s temporary restrictions on migrants seeking asylum, ruling that the government’s plan to reduce illegal crossings on the U.S.-Mexico border violated federal law.

U.S. District Judge Jon S. Tigar ruled against a system the Biden administration imposed more than two months ago that penalizes migrants who cross the border illegally and rewards those who instead scheduled appointments to seek asylum.

Tigar delayed his ruling from taking effect for 14 days to give the government time to appeal.

The judge, a Barack Obama nominee, sided with advocacy groups that had argued that the Biden restrictions violated federal law in part by endangering migrants fleeing harm and preventing migrants from seeking asylum if they crossed the border illegally, which Congress never intended.

Tigar said in his ruling that the Biden administration’s temporary asylum restrictions were “both substantively and procedurally invalid.”

The Biden administration immediately moved to appeal in hopes of preventing Tigar’s ruling from taking effect. Officials asked Tigar to consider delaying his ruling longer than two weeks while the U.S. Court of Appeals for the 9th Circuit considers the government’s position.

Administration officials said in their request to Tigar after his ruling that lifting the restrictions could lead to a major influx of migrants that could overwhelm the immigration system and cause severe crowding in holding facilities.

Justice Department spokesman Terrence Clark said in a statement that the government is confident that the recent restrictions are lawful.

White House press secretary Karine Jean-Pierre said during a news briefing Tuesday that the asylum rule “remains in full effect.”

“And as we have said multiple times, our border enforcement plan works,” she said. “Unlawful border crossings have come down to the lowest that we have seen in the past two years.”

Biden administration officials imposed the temporary restrictions in May as they ended a pandemic-related policy known as Title 42 that allowed border agents to quickly expel migrants without considering their asylum claims. Record numbers of migrants have attempted to cross the border since Biden took office, largely fleeing pandemic-damaged economies and authoritarian governments.

Without the restrictions, officials said, they anticipated that more migrants would claim asylum at the border, whether they were eligible for it or not, to gain entry into the United States. The U.S. immigration courts are so backlogged that migrants can live and work in the country for years while they await a decision in their cases.

The temporary restrictions said migrants would be ineligible for asylum if they crossed the border illegally or failed to seek protection in another country, such as Mexico, on their route. Migrants could seek asylum by scheduling an appointment via a government app or by having a U.S. resident sponsor them to come to the United States through a program called “parole.”

Migrants can also bypass the restrictions if they face a serious health condition or an imminent safety threat. After entering legally, they can apply for asylum.

Border apprehensions dropped to 99,545 in June, the first full month the restrictions were in effect, a nearly 42 percent decline from the month before and the lowest monthly tally since Biden took office.

Tigar acknowledged in his decision that the border numbers had dropped, easing pressure on federal border agents and U.S. cities and towns.

He agreed with the advocacy groups that the restrictions violated the Administrative Procedure Act for three reasons: He said they are contrary to federal law; they are “arbitrary and capricious” in part because they rely on faulty reasoning; and the public only had 30 days to comment, which he said was inadequate.

Tigar said the Biden administration cannot declare migrants ineligible for asylum if they crossed the border illegally because federal law says it does not matter how they entered the country if they say they are fleeing persecution. He said the U.S. government also cannot compel migrants to seek asylum in countries that lack robust asylum systems or are unsafe.

In Mexico, for instance, he wrote that migrants are at “extraordinary risk of violence,” including kidnapping for ransom and rape.

Katrina Eiland, an American Civil Liberties Union lawyer who argued the case before Tigar at a hearing last week, and other advocates for immigrants celebrated the ruling for defending the right to seek protection in the United States.

“These are our asylum laws that we’ve had on the books for more than 40 years,” she said.

To qualify for asylum, which can lead to U.S. citizenship, a migrant must have a well-founded fear that they will face persecution in their native country because of their race, religion, nationality, political opinion or another characteristic.

Asylum requests have soared in recent years to a historic high of more than 1.5 million, according to the Transactional Records Access Clearinghouse at Syracuse University.

The influx has fueled concerns that migrants are claiming fear to get into the United States, where they can live and work legally for years as they await a hearing in the backlogged immigration courts.

Most asylum seekers lose their cases, officials said, but they are rarely deported because of staffing shortages and policies that discourage the deportation of migrants with deep roots in the United States.

Tigar’s decision Tuesday echoed his prior rulings on the issue under the Trump administration, which had instituted similar restrictions on asylum seekers.

In 2018, Tigar temporarily blocked the Trump administration from denying asylum to migrants who crossed the U.S.-Mexico border illegally. The 9th Circuit and the Supreme Court declined to stay that decision.

Tigar also shot down a 2019 rule that prohibited migrants from seeking asylum if they had not asked for refuge in a country they passed through on their way to the U.S.-Mexico border.

The Supreme Court, without explanation, later allowed the rule to take effect throughout the border while the case made its way through the courts. That policy was soon overtaken by border expulsions during the pandemic.

Blas Nuñez-Neto, the top border policy official at the Department of Homeland Security, said last week that he worried the backlogged immigration courts were becoming a draw to migrants, who are paying smugglers $10,000 to $15,000 to take them on perilous trips to the border, including 50-mile treks through the Darién Gap, the jungle linking Central and South America.

“We are seeing the court system essentially become a proxy legal pathway for people to come into the United States and work while they’re here,” he said at an event hosted by the Migration Policy Institute, a think tank.

Immigration courts Director David Neal said at the event that immigration officers are filing twice as many cases as the judges are adjudicating.

Judges are on track to complete nearly 500,000 cases this year, a record, but they expect 1 million new cases this year.

Homeland Security Secretary Alejandro Mayorkas, who is scheduled to testify before the House Judiciary Committee on Wednesday, cautioned that Tigar’s ruling will not change the agency’s authority to detain and deport immigrants who are ineligible for protection.

Immigrants who cross the border illegally could be “subject to prompt removal,” barred from reentering the country for at least five years, and subject to criminal prosecution, he said in a statement.