A federal judge in California on Tuesday ruled against the Biden administration’s recently implemented restrictions on asylum along the U.S.-Mexico border, saying a policy that officials have partially credited for a sharp drop in migrant crossings violates the country’s legal obligations to those fleeing violence.
U.S. District Judge Jon Tigar in Oakland concluded that the regulation violates U.S. asylum law, which since 1980 has allowed migrants on American soil to request humanitarian protection as a way to halt the government’s efforts to deport them, regardless of how they entered the country.
Tigar blocked a similar, though more restrictive, Trump administration effort to bar asylum claims along the southern border. That lawsuit was also filed by the American Civil Liberties Union, which has said the Biden policy endangers refugees.
While he declared the Biden administration’s rules illegal, Tigar suspended his ruling for two weeks to give the Justice Department time to seek relief from a higher court. The case could ultimately reach the U.S. Supreme Court.
Still, Tuesday’s ruling is a significant defeat for the Biden administration and its strategy to reduce illegal crossings along the southern border, where officials have reported record levels of migrant apprehensions over the past two years.
The regulation, enacted in May, disqualifies migrants from asylum if they cross the U.S. southern border without legal permission and without first seeking humanitarian refuge in another country, like Mexico, on their journey north. The rule exempts certain migrants, including unaccompanied children, those who obtain permission to enter the U.S. at a legal port of entry, and asylum-seekers fleeing “imminent” harm.
Those unable to qualify for one of the exemptions could be swiftly deported from the U.S., banished for five years and faced with criminal prosecution if they try to reenter the country unlawfully. During its first weeks of implementation, the restriction has been mainly applied to migrant adults.
The Justice Department said it would appeal Tigar’s ruling and ask for it to be suspended while the appeals process plays out. “We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws,” a Justice Department spokesperson said, noting the administration “disagrees” with Tuesday’s ruling.
The judge’s ruling
In his decision Tuesday, Tigar said the rule is too restrictive because it considers factors that Congress did not explicitly authorize, such as whether migrants used a lawful migration program before seeking asylum. He also determined that some of the exemptions to the asylum restriction are “unavailable to many noncitizens.”
“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,” he wrote.
“The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option,” Tigar added.
Advocates for migrants applauded Tuesday’s decision.
“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,” said Katrina Eiland, the ACLU attorney who argued the case.
Biden administration officials have said the asylum restriction is partly responsible for a dramatic decrease in migration along the southern border since officials discontinued the Title 42 pandemic-linked measure on May 11. Title 42 allowed U.S. border officials to summarily expel migrants on public health grounds, but did not impose the civil and criminal penalties of regular deportations under U.S. immigration law.
In June, the number of migrants apprehended by Border Patrol after crossing into the U.S. unlawfully plunged to roughly 100,000, a 42% drop from May, and the lowest tally since the start of the Biden administration, according to government statistics first reported by CBS News earlier this month.
The Biden administration has also attributed the lower levels of unauthorized migration to its unprecedented efforts to expand opportunities for migrants to enter the U.S. with the government’s permission, including through an app that allows asylum-seekers in Mexico to request an appointment to be processed at ports of entry.
More than 38,000 migrants were allowed into the U.S. along border ports of entry in June after securing an appointment through the app, known as CBP One, an all-time high, government data show.
The Biden administration is also allowing up to 30,000 migrants from crisis-stricken Cuba, Haiti, Nicaragua and Venezuela to fly to the U.S. directly on a monthly basis if they have American sponsors. That program is being challenged in another federal court by Republican state officials who argue it bypasses Congress’ role in dictating legal immigration levels.
While U.S. law allows migrants on U.S. soil to claim asylum, the legal threshold to win asylum, and a chance to become a permanent resident, is high. Applicants must prove that they were persecuted — or have a well-founded fear of persecution — in their home country due to certain factors, such as their political views, race or religion.
