Judge knocks down Biden’s asylum policy as illegal border crossings dip

A federal judge Tuesday blocked the Biden administration’s new regulation restricting asylum-seekers, one that contributed to a severe drop in crossings at the U.S.-Mexico border over the past few months.

U.S. District Judge Jon Tigar, an Obama appointee in Oakland, Calif., knocked down the restrictions as “arbitrary and capricious,” while staying his ruling for 14 days to give the Biden administration an opportunity to appeal. Tigar also halted a similar measure — the Trump administration’s so-called transit ban — a few years ago, joking during last week’s hearing that he heard “2023 was going to be a big year for sequels.”

The judge’s 35-page ruling marks the latest legal hurdle facing the Biden administration’s immigration policy, which has faced multiple challenges from both ends of the political spectrum. Tigar’s decision jeopardizes the administration’s strictest deterrence measure to date and comes as illegal border crossings have plunged to their lowest level since President Joe Biden’s first full month in office.

“The Justice Department disagrees with the district court’s ruling today in the East Bay case and intends to appeal the decision and to seek a stay pending appeal. We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws,” a Department of Justice spokesperson said in a statement.

Tigar detailed a series of legal faults with the Biden asylum rule, including its basis on outdated or inaccurate assumptions and that it was made available for public comment during an abbreviated 33-day window. The judge raised particular concern about the administration’s effort to require most asylum applicants to present themselves at established ports of entry, rather than claiming asylum after crossing between border posts.

“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,” Tigar wrote.

Requests for comment from the White House and the Department of Homeland Security were not immediately returned Tuesday.

Biden’s “asylum ban,” released in May and set to expire in two years, bars some migrants from applying for humanitarian protection if they cross the border illegally or fail to first apply for safe harbor while crossing through another country on the way to the U.S. The rule is not applied to certain migrants, including unaccompanied children, asylum-seekers who enter at a legal port of entry or those fleeing “imminent” harm.

Immediately after the rule was issued this spring, upon the end of Title 42 health orders, immigrants rights advocates moved to sue the Biden administration and accused the White House of deploying President Donald Trump’s immigration playbook. The plaintiffs cheered Tuesday’s ruling, urging the Biden administration to drop its legal fight defending the policy.

“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. We encourage the Biden administration to now direct its resources to upholding that right, rather than fighting to continue this unlawful and inhumane asylum ban,” Keren Zwic, director of litigation at the National Immigrant Justice Center said in a statement.

Administration officials have rejected the notion that the two-year rule is like the Trump transit ban, which also required asylum-seekers to seek asylum through the first country they crossed on their way to the U.S. During last week’s hearing, a Justice Department lawyer argued that the current asylum restrictions are different because they are paired with a number of new legal pathways and that asylum-seekers can apply for an appointment through the CBP smartphone app.

The southern border has remained a vexing challenge for the president — one that’s not expected to dissipate as Republicans seize on the border as a base rallying issue in 2024. The ruling is also a blow to the Biden administration’s post-Title 42 border plan, but it’s not clear how it will affect declining border crossings.

While administration officials have credited the asylum rule in part for the drop in border crossings, some immigration experts argue the use of the CBP One app, voluntary departure and the expansion of legal pathways have played a larger role in the plummeting border numbers.