Judge may Decide Fate of Biden’s Migrant Asylum Rules within a Week

Photo for The Washington Post by Meridith Kohut
Migrants pose for photos in Brownsville, Tex., after being released by U.S. immigration officials on July 1, 2023.

A federal judge Wednesday grilled Biden administration officials about temporary asylum restrictions on the southern border and said he would decide within a week whether the rules are against the law.

U.S. District Judge Jon S. Tigar in the Northern District of California, who blocked similar restrictions under the previous administration, said during a hearing that if he ruled against the Biden administration, he would hold off on enforcing his decision for two weeks so that the government could appeal.

The Biden administration had requested the extra time because a ruling against the asylum restrictions could wipe out vital elements of the administration’s strategy to reduce record numbers of illegal crossings at the U.S.-Mexico border as the president runs for a second term. Officials said in court records that tossing the restrictions could have a “chaotic impact” on the border.

The Biden administration imposed the rules in mid-May after it ended the Title 42 pandemic policy that had allowed border authorities to quickly expel migrants without considering their asylum claims. The administration warned that an even larger influx of migrants could rush the border and overwhelm the Border Patrol without tighter restrictions in place.

The restrictions are supposed to last two years and declare migrants ineligible for asylum if they entered the United States illegally or failed to seek humanitarian protection in another country such as Mexico along the route.

Federal asylum law says that to qualify for asylum, a foreigner must have a well-founded fear that they will face persecution in their homeland because of their race, religion, nationality, political opinion or another trait that makes them a particular target.

Federal officials have said that there is a significant gulf between the number of migrants who pass an initial asylum screening and the number who ultimately win their cases in immigration courts. Those who lose are rarely deported in part because of large case backlogs and limited federal resources, officials said.

Advocacy groups argued that the Biden restrictions violate federal law, which says that anyone on U.S. soil may seek asylum, whether they crossed legally or not.

Katrina Eiland, a lawyer for the American Civil Liberties Union, told Tigar that the restrictions are impeding thousands of migrants from seeking refuge in the United States and are forcing many to wait in Mexican border cities where human rights workers have documented cases of migrants being raped, kidnapped for ransom and killed.

“This rule has consequences,” Eiland said during the hearing, which was broadcast online. She said the U.S. government has other tools to manage the border beyond “imposing unlawful consequences” on migrants seeking safety.

Officials in the Biden administration have argued that its rules are more humanitarian than Trump administration practices because they discourage migrants from hiring mercenary smugglers or making dangerous treks across the border. Migrants can apply for asylum in more orderly ways, Biden administration officials say.

Migrants can bypass the restrictions in several ways, which include scheduling an appointment with the U.S. government to apply for asylum, being denied protection in another country on the route, or applying via “parole” programs that require a sponsor in the United States. They can also ask to be allowed into the United States because they have a medical emergency or face an imminent threat.

Erez Reuveni, a lawyer for the Justice Department who represented the government in court Wednesday, told Tigar that it was unfair for advocates to suggest that migrants cannot seek asylum and that slots are available for hundreds of thousands of people to enter through lawful pathways.

Reuveni said illegal border crossings have dropped dramatically since the rules took effect. Official statistics released Tuesday showed that the Border Patrol made 99,545 apprehensions in June, down from 171,387 in May, the biggest one-month drop since Biden took office.

While he acknowledged that the rule was not the only reason for the decline, Reuveni said that lifting the restrictions could have a dramatic effect by potentially increasing the number of border crossings.

Tigar said he did not intend to take the June numbers into account in rendering his decision, though he did not say why.

At the start of the hearing, Tigar acknowledged the similarities to the previous cases under the Trump administration. In fact, the advocates challenging the Biden rules had revived one of the lawsuits against the Trump administration instead of filing a new case.

“I read somewhere that 2023 was going to be a big year for sequels,” Tigar said during the hearing.

In November 2018, Tigar temporarily blocked the Trump administration from denying asylum to migrants who crossed the southern border illegally, saying the president violated a “clear command” from Congress to allow them to apply.

A three-judge panel on the U.S. Court of Appeals for the 9th Circuit refused to stay that ruling, in a 2-1 decision written by a Republican appointee.

“We are acutely aware of the crisis in the enforcement of our immigration laws,” Judge Jay S. Bybee, a George W. Bush nominee, wrote in 2018. “And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place – Congress.”

The Supreme Court upheld that decision in December 2018 but did not explain its reasoning.

Trump administration officials tried again in 2019 with a policy that barred migrants from requesting asylum if they had traveled through another country such as Mexico on their way to the United States and failed to seek protection there.

Tigar temporarily blocked that policy as well in a decision that said evidence showed that migrants could not safely seek asylum in Mexico.