A federal judge on Tuesday halted a rule that permits immigration authorities to deny asylum to migrants who arrive at the U.S.-Mexico border without applying online or seeking protection in a country they passed through. However, the judge has postponed the implementation of the ruling for two weeks to allow President Joe Biden’s administration to appeal.
The order, issued by U.S. District Judge Jon Tigar of the Northern District of California, removes a crucial enforcement measure implemented by the Biden administration after asylum restrictions related to the coronavirus expired in May. The new rule imposes strict limitations on migrants seeking asylum but includes exceptions and does not apply to unaccompanied children.
“The Rule, which has been in effect for two months, cannot remain in place,” Tigar wrote in an order that will take effect in two weeks.
The Justice Department promptly appealed the order and requested a suspension while the case is heard. The agency is confident that the rule is legal.
Immigrant rights groups, who filed a lawsuit against the rule, praised the judge’s decision.
“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,” said Katrina Eiland, an attorney from the American Civil Liberties Union, who argued the case.
The ACLU and other groups argued that the rule violates a U.S. law protecting the right to asylum regardless of the method of entry into the country. They claimed that the rule forces migrants to seek protection in countries with inadequate asylum systems and human rights protections compared to the United States. They also argued that the CBP One app, which the government wants migrants to use, does not provide enough appointments and is not available in sufficient languages.
The administration argued that the protection systems in the countries that migrants travel through have improved. However, Tigar stated that it is not feasible for some migrants to seek protection in a transit country and noted the violence that many face in Mexico.
“While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors,” wrote Tigar, who was appointed by President Barack Obama.
Tigar also deemed the rule illegal because it presumes that individuals are ineligible for asylum if they enter the country between legal border crossings. However, Congress explicitly stated that this should not affect someone’s eligibility for asylum.
The judge also rejected the administration’s argument that it had provided alternative pathways for people to enter the U.S. He noted that programs that allow entry into the U.S., such as the one for migrants from Cuba, Haiti, Nicaragua, and Venezuela, are not available to all migrants.
The Biden administration claimed that the asylum rule was part of its strategy to strike a balance between strict border enforcement and providing multiple avenues for migrants to pursue valid asylum claims. Customs and Border Protection reported that encounters along the southern border decreased by 30% in June compared to the previous month, the lowest monthly total since February 2021.
Critics argue that the rule is essentially a newer version of previous efforts by former President Donald Trump to restrict asylum at the southern border.
Trump previously criticized Tigar as an “Obama judge” after the judge rejected a Trump administration policy that prevented people from applying for asylum except at an official border entry point. This policy was halted by legal challenges and did not take effect.
Tigar also ruled against the Trump administration’s attempt to limit asylum to individuals who do not apply for protection in countries they pass through before arriving in the U.S. The Supreme Court eventually allowed this policy.