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Judge strikes down Biden administration asylum restrictions

Policy makes it harder for migrants to qualify if they cross the U.S.-Mexico border after passing through another country on the way

Migrants wait to be taken by Border Patrol to a processing facility to begin their asylum-seeking process last month in Eagle Pass, Texas.
Migrants wait to be taken by Border Patrol to a processing facility to begin their asylum-seeking process last month in Eagle Pass, Texas. (Suzanne Cordeirdo/AFP via Getty Images)

A California federal judge on Tuesday ruled against a Biden administration policy from May that limits asylum eligibility for migrants who cross the southwest border without authorization.

Judge Jon Tigar of the U.S. District Court for the Northern District of California found the policy, which makes it harder for migrants to qualify for asylum if they cross the border after passing through another country on the way, violates current laws protecting asylum access.

Citing early litigation against Trump-era asylum policies, Tigar took issue with the administration’s restrictions against asylum-seekers who crossed the border in between ports of entry and those who do not first seek protection in another country such as Mexico.

The judge was also unpersuaded by the federal government’s claims that those restrictions are permissible because the administration has carved out exemptions to the limits and other legal migration pathways.

“To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility,” Tigar wrote.

Tigar struck down the asylum rule but paused the effect of his order for 14 days. The administration had asked for time to appeal a ruling against the rule.

White House Press Secretary Karine Jean-Pierre told reporters Tuesday that the Justice Department plans to appeal the court ruling and to request to extend the current 14-day pause. Homeland Security Secretary Alejandro Mayorkas also said in a statement that the department “strongly disagree[s] with today’s ruling” and is “confident” that the asylum policy is legal.

Katrina Eiland of the American Civil Liberties Union, who argued the case at a virtual hearing earlier this month, said in a news release that the ruling is a “victory,” but added that “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.”

The Biden administration implemented the contested asylum restrictions in May as a tool to manage migration following the expiration of pandemic-era border controls known as Title 42.

The administration also implemented programs allowing migrants from Cuba, Venezuela, Haiti and Nicaragua to apply to enter the country legally if they had ties to the U.S.

Customs and Border Protection also expanded a smartphone app to allow migrants to make appointments at ports of entry to request asylum.

The number of unauthorized crossings has dipped since the policy took effect. In June, border agents logged the lowest number of total encounters at the southwest border — including both border crossings and those who make asylum claims at designated ports of entry — since February 2021.

But advocates have argued that the policy illegally restricts asylum for the most vulnerable migrants who may not have access to a smartphone app or the ability to wait safely outside the U.S. Congressional Democrats have also blasted the policy.

In January, after plans to issue the rule were announced, Sen. Bob Menendez, D-N.J., and other Democrats wrote in a letter to President Joe Biden that while they “applaud the creation” of additional legal pathways for migrants from those nations to seek protection, it “is disappointing that these pathways come at the expense of the legal right to seek asylum at the southern border.”

In a May court filing, the American Civil Liberties Union and other advocates told Tigar the latest version of the asylum rule is “already inflicting untold suffering on thousands of asylum seekers, who are either being deported to persecution or stranded in Mexican states where migrants face horrific and pervasive violence.”

In his opinion, Tigar found that seeking asylum in a transit country, or nation migrants passed through en route to the U.S.-Mexico border, is often “infeasible” for many asylum-seekers. The Colombian government, for example, granted just 753 asylum cases out of roughly 37,000 cases submitted between January 2017 and June 2021, the opinion states.

The Mexican refugee agency is similarly “underfunded and unable to keep up with demand,” the opinion states. The judge also cited reports showing migrants are targeted for violence in those countries while waiting for their claims to be processed or for an appointment on the government’s app.

Tigar had similarly ruled against a version of the rule issued under the Trump administration, which barred migrants from accessing asylum if they had transited through another country on the way, with limited exceptions.

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