A federal judge struck down on Tuesday a stringent new asylum policy that officials have called crucial to managing the southern border, dealing a blow to the Biden administration’s strategy after illegal crossings by migrants declined sharply in the last few months.
The rule, which has been in effect since May 12, disqualifies most people 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 U.S. law and heightened migrants’ vulnerability to extortion and violence during protracted waits in Mexican border towns. They also argued that it mimicked a Trump administration rule to restrict asylum that was blocked in 2019 by the same judge, Jon S. Tigar of the United States District Court for the Northern District of California.
While the decision creates new uncertainty about the policy, conditions at the border are unlikely to change in the coming days.
Judge Tigar stayed his order for 14 days, agreeing to a request by the Biden administration to give it time to file an appeal, and the Homeland Security Department filed a notice on Tuesday afternoon that it would do so.
If the appeals court extends the stay, the policy would remain in effect for several more weeks until the panel issued a decision. After that, the case could reach the Supreme Court.
By law, foreigners who reach U.S. soil are entitled to request asylum, regardless of how they entered the country.
In his ruling, Judge Tigar, who was appointed by President Barack Obama, wrote that the policy was “both substantively and procedurally invalid.”
“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.
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.
A migrant surge could open up President Biden to attacks from Republicans, as campaigning gets underway for the presidential election next year. This policy, in particular, does not diverge greatly from the one introduced by President Donald J. Trump, according to legal experts.
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.
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 American Civil Liberties Union’s Immigrants’ Rights Project, who argued the case for the plaintiffs, said in a statement.
The plaintiffs argued that the policy was procedurally unlawful because the public had not been given enough time to comment on the new rule. Judge Tigar 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 administration also said that other programs that it introduced offered alternatives for asylum seekers excluded by the rule.
Those programs, among other factors, have contributed to the recent decrease in unauthorized crossings, and they make it difficult to predict how the judge’s ruling will affect migration levels.
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.
The Biden administration’s new programs have enabled several hundred thousand people to legally enter the United States 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 from other countries who reach Mexico 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 Sept. 30.
The judge was not swayed 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 winning 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 2 million pending cases in immigration court, and about four out of ten are asylum applications. David Neal, director of the Justice Department’s Executive Office for Immigration Review, estimated during the discussion 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.
