Federal court blocks Biden rule limiting asylum

A federal judge Tuesday blocked a new Biden administration rule that limited access to asylum, issuing a decision that will take effect in two weeks.

The ruling from a federal judge in California is a major loss for the Biden administration, which imposed new restrictions on asylum-seekers, including that they must first seek the protections if offered in another country along their route to the U.S. 

The rule, finalized in May, also limits the ability to seek asylum between ports of entry. 

In blocking the rule, U.S. District Court Judge Jon Tigar repeatedly referenced U.S. asylum law, writing that the new policy undermines the clear intent of Congress in establishing a safe haven for those fleeing persecution and danger.

“Requiring noncitizens to present at ports of entry effectively [constitutes] a categorical ban on migrants who use a method of entry explicitly authorized by Congress,” Tigar wrote in the ruling.

“Conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress,” he added later.

The suit stems from a challenge led by the American Civil Liberties Union (ACLU), though the policy also generated lawsuits from GOP-led states.

“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,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case, said in a statement. 

“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.”

The Department of Homeland Security (DHS), which promulgated the rule, did not immediately respond to a request for comment, though the Department of Justice is expected to appeal the ruling.

“We strongly disagree with today’s ruling and are confident that the Circumvention of Lawful Pathways rule is lawful,” DHS Secretary Alejandro Mayorkas said in a statement, referencing the formal title of the rule.

He noted the Department of Justice will appeal the decision and seek a stay pending appeal. 

“Because the district court temporarily stayed its decision, today’s ruling does not change anything immediately.  It does not limit our ability to deliver consequences for unlawful entry. Do not believe the lies of smugglers. Those who fail to use one of the many lawful pathways we have expanded will be presumed ineligible for asylum and, if they do not have a basis to remain, will be subject to prompt removal, a minimum five-year bar on admission, and potential criminal prosecution for unlawful reentry,” he said.

The rule had prompted howls from critics who argued DHS was turning to policies strikingly similar to those proposed under former President Trump. While the Biden rule had some mechanisms for migrants to fight determinations that they were ineligible for asylum, like the Trump-era third country transit ban it effectively blocked asylum for those who did not first seek it along their route.

Immigration advocates have argued few other countries have functional asylum systems to offer such protections.

But in some regard, DHS appeared to have reservations about the rule.

“To be clear, this was not our first preference or even our second,” a senior administration official told reporters when previewing the policy in February.

The court’s ruling follows the decision by the Biden administration to lift Title 42, another Trump-era policy that used the pandemic as a rationale for expelling migrants without letting them seek asylum — another contravention of asylum law.

Border crossings have dipped since the rescission of Title 42, a factor the administration credits both to the new limitations on asylum as well as the creation of new parole programs for Cubans, Haitians, Venezuelans and Nicaraguans that allows temporary admittance to the country.

Updated at 4:39 p.m.