CAPTION: Migrants wait throughout the night of May 10, 2023, in a dust storm at Gate 42, on land between the Rio Grande and the border wall, hoping they will be processed by immigration authorities before the expiration of Title 42. (Corrie Boudreaux for Source NM)
WASHINGTON — A federal judge on Tuesday blocked the Biden administration’s rule that restricts migrants from seeking asylum if they arrive at the U.S.-Mexico border without first seeking protection in another country or applying for an asylum appointment online.
Judge Jon S. Tigar, who was appointed by President Barack Obama, wrote in his decision that the rule violates federal law that allows for anyone on U.S. soil to claim asylum.
But he is granting the Biden administration’s request to delay the decision from taking effect for two weeks, which gives the Department of Justice time to appeal.
The Justice Department did not respond to States Newsroom’s requests for comment if it would appeal the decision, which would go to the 9th Circuit Court of Appeals. Tigar is a judge in U.S. District Court for the Northern District of California.
Tigar wrote that the Biden administration’s 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 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,” he wrote.
Two months ago, the Biden administration implemented a temporary two-year rule as an immigration enforcement tool in preparation for the end of Title 42, a pandemic-era tool used to bar more than 2 million migrants from claiming asylum and instead expel them without an asylum hearing.
The number of asylum cases is at a historic high, with more than 1.5 million pending, according to the Transactional Records Access Clearinghouse at Syracuse University.
The Biden administration had argued its rule was needed in anticipation of numerous migrants at the Southern border following the end of Title 42. There were narrow exceptions to the rule, such as for children and teens who are unaccompanied and for asylum seekers who are facing an imminent threat to their lives or have a medical emergency.
Since the policy was put in place in May, encounters at the Southern border have dropped significantly. In May there were more than 200,000 encounters, compared to June, when there were more than 144,000, according to data from U.S. Customs and Border Protection.
But the policy also imposed harsh penalties. If a migrant did not claim asylum in another country or try to make an appointment through the CBP One mobile app, they would be removed and subjected to a five-year ban from requesting asylum and would be ineligible to apply for other parole programs available to nationals from Cuba, Haiti, Nicaragua and Venezuela.
The groups who sued the Biden administration in May include the American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies and the National Immigrant Justice Center.
“The court’s ruling is welcome and expected, since the new policy simply rehashed prior rules that restricted access to asylum based on similar grounds, which courts already rejected. U.S. laws protect the rights of people fleeing persecution to come to this country and pursue asylum, full stop,” Keren Zwick, director of litigation at the National Immigrant Justice Center, said in a statement.
The policy has also drawn scrutiny from Democrats in Congress, who have argued that the policy mirrors the Trump-era so-called “transit ban.”
“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 ACLU’s Immigrants’ Rights Project, who argued the case, said in a statement.
This is a familiar ruling for Tigar, who struck down the Trump administration “transit ban.” Tigar argued that the Trump administration’s policy ignored Congress’ decision to allow immigrants to apply for asylum.
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