Federal court blocks Biden rule limiting asylum for migrants, a major blow to administration

A federal judge in Oakland on Tuesday blocked a Biden administration rule that limits migrants’ access to asylum at the southern border, casting doubt on the future of a key policy aimed at limiting crossings.

The order from federal Judge Jon S. Tigar, who was appointed by President Obama, won’t take effect for two weeks. The Biden administration is expected to appeal quickly — first to the U.S. 9th Circuit Court of Appeals then, if unsuccessful, to the U.S. Supreme Court.

The policy, which restricts access to asylum for migrants who come through a third country on their way to the U.S. without applying for protections, is the centerpiece of the Biden administration’s efforts to reduce the number of migrants crossing without authorization each month.

Biden administration officials have said in court declarations that without the policy, border crossings would increase, straining government resources. In June, crossings at the border were at their lowest level in more than two years.

Government officials have been encouraging migrants to schedule appointments at a port of entry on a Customs and Border Protection app, as opposed to crossing without authorization. U.S. officials have also advertised a system that allows migrants from Cuba, Venezuela, Haiti and Nicaragua to apply for entry into the U.S., provided they have a financial sponsor and can pass security checks.

Tigar blocked the Trump version of the policy in 2019. The Supreme Court later stayed the order.

Immigrant advocates have blasted the Biden administration’s asylum limits, labeling them as nothing more than a return to policies seen during the Trump presidency.

The legal challenge was filed by the ACLU, the National Immigrant Justice Center and the UC Hastings Center for Gender and Refugee Studies in May, when the policy went into place.

“After campaigning on a promise to restore our asylum system, the Biden administration has instead doubled down on its predecessor’s cruel asylum restrictions,” the lawsuit reads. “The agencies claim the rule merely provides consequences for asylum seekers circumventing lawful pathways. But seeking asylum is a lawful pathway protected by our laws regardless of how one enters the country.”

Biden administration officials have said that the policy is intended to discourage unauthorized migration and encourage people to seek alternatives.

“As intended, the rule has significantly reduced screen-in rates for noncitizens encountered along the [Southwest border],” Blas Nuñez-Neto, a senior Department of Homeland Security official, wrote in the filing. “The decline in encounters at the U.S. border, and entries into the Darién Gap, show that the application of consequences as a result of the rule’s implementation is disincentivizing noncitizens from pursuing irregular migration and incentivizing them to use safe and orderly pathways.”

Nuñez-Neto said in his declaration in late June that there were 104,000 migrants in northern Mexico and that many appear to be “waiting to see whether the strengthened consequences associated with the rule’s implementation are real.”

Data from his filing showed that the policy had significantly lowered the percentage of migrants at the southern border who crossed into the country and were allowed to apply for asylum.