A federal judge in California struck down a Biden administration asylum policy on Tuesday that created a “rebuttable presumption of asylum ineligibility” if someone seeking asylum in the US has did not first seek out a lawful, safe and orderly path to the US. The ruling found that the rule, which was set to take effect in August, was improper on both substantive and procedural grounds.
Judge Jon Tigar found that the new rule’s notice-and-comment process did not meet the requirements of the Administrative Procedure Act, stating that a 30-day period is not sufficient for such a complex rule. However, the Department of Homeland Security (DHS) argued that due to the expiration of Title 42—the previous policy used to govern asylum—the rule needed to be in place quickly. However, Tigar dismissed this argument, writing, “[T]he agencies were preparing for the end of Title 42 well before it was announced, such that they could have issued the Notice with sufficient time to grant a longer comment period and still have had the Rule in place when Title 42 expired.” Tigar also found that the new policy was “arbitrary and capricious,” stating:
Simply put, the asylum statute contemplates that, subject to certain exceptions, any noncitizen physically present in the United States—regardless of whether they entered on a work visa or with parole-related travel authorization—or at a land border or port of entry—regardless of the size and scope of refugee admissions efforts—may apply for asylum. 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 concluded, writing, “The severity of the agencies’ errors in this case counsels strongly in favor of vacatur. The Rule is both substantively and procedurally invalid.”
The American Civil Liberties Union (ACLU) celebrated the ruling, saying, “The administration now faces a choice: Follow the law, or try to block the ruling from taking effect in 14 days, leaving people seeking safety in grave danger.”
The case originally began in 2018 as East Bay Sanctuary Covenant v. Trump, challenging a proclamation from former Secretary Of Homeland Security Kirstjen Nielsen and another from former President Donald Trump, which suspended entry into the US without inspection even if someone intended to claim asylum. East Bay Sanctuary Covenant was granted leave in May to file an amended complaint against the current Biden-era policy.
East Bay Sanctuary has been involved in many other immigration legal disputes, including Barr v. East Bay Sanctuary Covenant where the Supreme Court ruled the Trump administration could enact a rule that, similar to the new Biden-era policy, did not allow immigrants to apply for asylum if they had not applied for asylum in other countries they passed through before entering the US, despite a stay. That rule was eventually vacated by a federal district court in 2020.
The new Biden-administration policy has been met with concern by human rights and immigration organizations, including the ACLU and Amnesty International. However, Secretary of Homeland Security Alejandro Mayorkas stated, “Our borders are not open. To those who do not use our available lawful pathways, we will deliver tougher consequences using our immigration law authorities.” Despite increasing anti-immigration rhetoric from the Biden administration and both Democrat and Republican politicians, border crossings have fallen significantly. The US Customs and Border Protection announcing almost 65,000 fewer Southwest Land Border Encounters in June of 2023 as compared to June of 2022, despite the lifting of Title 42.
The Biden administration filed an appeal of the ruling on Tuesday to the US Ninth Circuit Court of Appeals.