Women hold their wristbands high in the hope they are chosen by Border Patrol agents.Gregory Bull/AP
On Tuesday, a federal judge in California delivered a blow to the Biden administration’s efforts to manage migrant arrivals at the US-Mexico border. Judge Jon S. Tigar of the District Court for the Northern District of California blocked a controversial rule that severely restricts asylum for most migrants, requiring that they seek protection in third countries on their way to the United States and apply through a flawed mobile application known as CBP One.
The policy is similar to a Trump-era transit ban that was also blocked by the same Obama-appointed judge as unlawful. At a hearing earlier this month, the judge quipped: “I read somewhere that 2023 was going to be a big year for sequels.” In response, the attorney for the Justice Department said, “I would call this more of a remake.” The Biden administration has already moved to appeal the ruling.
Tuesday’s decision comes in a case brought by the American Civil Liberties Union and other immigrant rights groups against the Biden administration. They argued that the rule violated asylum seekers’ rights under US law to access protection regardless of how they enter the country and that it put migrants in danger. 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,” Judge Tigar wrote. “The Rule is therefore arbitrary and capricious.”
“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, said in a statement. “The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”
The asylum rule was instituted in May in response to the lifting of Title 42, the pandemic-era order that summarily expelled migrants arriving at the border. The Biden administration has defended the policy as necessary to control the situation at the border by encouraging migrants to take lawful pathways and has credited it with contributing to a decrease in border crossings. But advocates say the policy essentially shuts the door on the most vulnerable asylum seekers. As I’ve written about before:
The new rule provides for some exemptions for unaccompanied minors or cases of an “imminent and extreme threat to life or safety” and “acute medical emergency.” But its resemblance to the transit ban first implemented by the Trump administration and blocked by courts for violating asylum laws was noted in many of the more than 50,000 public comments regarding the proposed regulation, which was finalized on May 10. “Don’t try to fight the Republican scaremongering about the ‘border crisis’ by imitating Trump,” one said.
“This is the right decision, and one that Democrats would have celebrated under the Trump admin,” Andrea R. Flores, a former immigration official with the Biden administration, tweeted. “The asylum ban is not the answer to managing migration, but legal pathways, more in-region processing options, CBP One, and devoting resources to expedite the asylum process just might be the best way forward.”
