A federal judge struck down President Joe Biden’s controversial asylum ban July 25 but also gave the administration 14 days to appeal the ruling.
The asylum policy, adopted in May to replace Title 42, revived a Trump-era rule requiring migrants seek refuge in other nations enroute to the U.S. before applying at the southern border. Biden’s rule adds the option of using a much-maligned phone app to apply for asylum appointments.
The president’s approach has been roundly blasted by immigration and human rights advocates for circumventing existing U.S. and international laws providing safe haven for immigrants fleeing persecution and for requiring asylum seekers to languish in Mexico as their cases play out.
U.S. District Judge Jon Tigar cited the same objections in his ruling, saying the policy “effectively (constitutes) a categorical ban on migrants who use a method of entry explicitly authorized by Congress. Conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress.”
Secretary of Homeland Security Alejandro Mayorkas said the ruling in East Bay Sanctuary Covenant v. Biden changes nothing.
“We strongly disagree with today’s ruling and are confident that the Circumvention of Lawful Pathways rule is lawful. The Department of Justice has said it will quickly appeal this decision and seek a stay pending appeal.”
The administration designed its asylum policy to help reduce the number of illegal crossings at the U.S.-Mexico border. The U.S. Border Patrol said it arrested fewer than 100,000 migrants in June, a decline from the previous month.
“CBP’s total encounters along the Southwest border in June were the lowest in over two years, dropping nearly a third from May,” a news release said.
An American Civil Liberties Union attorney who co-litigated the case celebrated Judge Tigar’s decision but lamented the administration’s determination to appeal.
“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,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project. “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.”
Judge Tigar got it right in the ruling, said Melissa Crow, director of litigation at the Center for Gender and Refugee Studies. “President Biden’s asylum ban violates our laws and makes a mockery of our asylum system.”
The government admitted the flawed nature of its policy in recent court proceedings, she said. “Last week the government conceded that under the ban, people with meritorious legal claims can be barred from asylum and deported to countries where they face grave harm. To them, that is an acceptable price to pay for the illusion of border management. But they are breaking the law, sowing chaos and putting vulnerable people in harm’s way. We urge the administration to stop defending this illegal policy and instead take immediate steps to establish a fair and humane process that upholds the rights of all people seeking refuge at our nation’s doorstep.”
Keren Zwick, director of litigation at the National Immigrant Justice Center, added that Biden’s approach is little different from that of his predecessor.
“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,” Zwick said. “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.”
The ruling also offers hope to those seeking safety in the U.S., said Guerline Jozef, executive director of Haitian Bridge Alliance, which was not a plaintiff in the case. “It emphasizes the importance of safeguarding the rights of people in migration and ensures they are not unduly hindered in their pursuit of safety and asylum protection.”
The Center for Refugee and Gender Studies said the plaintiffs in the case were the East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights and the Tahirih Justice Center.