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The Biden administration is appealing a federal judge’s decision that blocked a contentious immigration rule. This rule establishes a presumption that noncitizens attempting to enter the United States through the southern border are ineligible for U.S. asylum unless they have a prior appointment or qualify for specific limited exceptions.
The ruling, issued by U.S. District Judge Jon S. Tigar of the Northern District of California, has caught the attention of many, including the American Civil Liberties Union (ACLU), which is representing the plaintiffs in this case. Although Judge Tigar blocked the rule, he also granted a two-week stay on his decision, allowing time for the Biden administration to appeal.
The new immigration rule raises concerns over the presumption of asylum ineligibility, which applies in most cases, with only three exceptions. These exceptions include situations where noncitizens have received advance permission to travel to the U.S. through a parole process, when they have a scheduled appointment, or when they have been denied asylum by a country they passed through on their way to the United States. However, it is worth noting that the presumption can be challenged with evidence of exceptionally compelling circumstances.
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Judge Tigar’s appointment by former President Obama has drawn attention, as he previously blocked asylum restrictions imposed by former President Donald Trump. During Trump’s tenure, he referred to Tigar as an “Obama judge” due to his rulings against the administration’s policies. Notably, two of the Trump-era rules that Tigar blocked involved requiring asylum applicants to enter the U.S. only through designated ports of entry and to apply for asylum in at least one country they passed through while traveling to the United States.
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The 9th U.S. Circuit Court of Appeals in San Francisco concurred with Judge Tigar’s rulings, blocking both of the Trump administration’s asylum rules. However, the U.S. Supreme Court, in September 2019, allowed the travel-rule case to take effect pending appeal. The current case emerged as a motion to file an amended complaint in the Trump-era rule cases.
In the revised case, Judge Tigar found that the Biden administration’s asylum rules violated the Administrative Procedure Act on several grounds:
He deemed them contrary to federal law, as the Immigration and Nationality Act explicitly permits anyone reaching the United States to apply for asylum, regardless of whether they arrived at a designated point of entry.
He declared the rules arbitrary and capricious due to faulty reasoning.
Tigar found fault with the administration for allowing only a brief 30-day comment period before implementing the policy change.
Moreover, Congress has made it clear that failure to apply for asylum in another country should only bar asylum seekers if that other country is a safe option. This stance reflects the fact that many asylum seekers may have legitimate reasons for not applying for asylum in countries they pass through en route to the U.S.
The Biden administration adopted the new policy after ending the controversial Title 42 policy, which had allowed for the swift expulsion of migrants without a proper examination of their asylum claims. Title 42 was grounded in Section 265 of 42 U.S. Code, which enabled the government to prevent migrants from entering the country during health crises to curb the spread of disease.
As this legal battle unfolds, it holds significant implications for the rights and protections afforded to asylum seekers at the U.S. southern border. The outcome of the appeal will shape the future of immigration policy and the treatment of those seeking refuge in the United States. The case has attracted widespread media coverage, with major publications like The Washington Post, the New York Times, Law360, and the Associated Press closely following the developments. As the two-week stay granted by Judge Tigar comes to an end, the nation awaits the resolution of this crucial legal dispute.
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