This year has seen many developments regarding the Biden Administration’s attempts to cope with the large numbers of migrants illegally crossing the U.S.-Mexico border. Here is a review of some of those developments.
Biden’s New Asylum Regulation[1]
On February 21, the Biden Administration announced a proposed rule that would require rapid deportation of an immigrant at the U.S. border who had failed to request protection from another country while en route to the U.S. or who had not previously notified the U.S. via a mobile app of a plan to seek asylum in the U.S. or who had applied for the new U.S. humanitarian parole programs for certain countries (Cuba, Haiti, Nicaragua and Venezuela). This rule was scheduled to take effect will take effect on May 11, with the expected termination that day of Title 42 which allowed the U.S. to swiftly expel migrants at the U.S. border.
This announcement stated that the new rule would “incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings, by placing a new condition on asylum eligibility for those who fail to do so. These steps are being taken in response to the unprecedented western hemispheric migration challenges – the greatest displacement of people since World War II – and the absence of congressional action to update a very broken, outdated immigration system.”
DHS Secretary Alejandro N. Mayorkas stated, “We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners. As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry.”
Attorney General Merrick B. Garland added the following: “The Department of Justice is responsible for administering the Nation’s immigration courts and ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process. This proposed rule will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted. We look forward to reviewing the public’s comments on this proposed rule.”
The Administration said that without this new rule, immigration at the U.S. border would “increase significantly, to a level that risks undermining the … continued ability to safely, effectively and humanely enforce and administer U.S. immigration law.”
On May 12, 2023, these new restrictions on applications for asylum under U.S. law went into effect. Under these new restrictions aliens were disqualified for making such applications if they had crossed into the U.S. without either securing an appointment for an official U.S. interview at an official port of entry or without seeking legal protection in another country along their way to the U.S.
Reactions to U.S. New Asylum Rules[2]
Prior to this new rule, U.S. border patrol officials were daily encountering about 7,500 migrants trying to cross the U.S. border illegally. Since then the numbers have declined to about 3,000 per day, still historically high but dramatically lower than the 7,500.
There is abundant evidence that migrants have been applying for asylum in record numbers under this new rule and now are in long lines, taking several years, for their cases to be heard in Immigration courts. (At the end of fiscal 2022, there were nearly 1.6 million pending asylum applications.) Moreover, other migrants without legal support, are likely to miss the 12 month deadline for submitting the complicated application) and fall into the more perilous category of the undocumented.
In a joint statement, Democratic Sens. Bob Menendez (N.J.), Cory Booker (N.J.), Ben Ray Luján (N.M.) and Alex Padilla (Calif.) called on the administration to drop the proposed rule. “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation. In reality, they are pursuing a legal pathway in the United States.”
A similar reaction came from leading Democrat House members (Rep. Jerrold Nadler and Pramila Jayapal). In their joint statement, they expressed “deep disappointment” with the newly proposed rule and stated, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.”
Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said they applaud the expanded pathways for those four countries announced in January but question where that leaves migrants from other countries. She says it favors people with resources who can afford the necessary requirements of finding a financial sponsor and buying a plane ticket to the U.S. And some people are so at risk, they simply cannot wait in their country for a humanitarian parole slot. Critics have also highlighted technological problems with the app.”
The Federation for American Immigration Reform said that the rule isn’t designed to halt migrants as much as make the process more orderly: “In other words, the real objective is not to end large-scale asylum abuse, but rather to get them through the next election cycle.”
Justice Action Center’s counsel, Jane Bentrott, said the proposed rule “would send asylum seekers back to danger, separate families, and cost lives, as human rights advocates have been asserting for weeks. It is in direct contravention of President Biden’s campaign promises to reverse Trump’s racist, xenophobic immigration policies, and give all folks seeking safety a fair shot at asylum.”
Lindsay Toczylowski, the executive director of Immigrant Defenders Law Center in California, criticized the inept operations of the government’s online system for scheduling an asylum application interview. “It’s almost like a lottery. You have to win a ticket to be able to seek protection in the U.S.”
An ACLU attorney, Lee Gelernt, who successfully challenged similar efforts by the Trump Administration, said that Biden’s new proposed rules had the same legal flaws as the Trump rules and that the ACLU would sue to block the latest move.
Challenge to New Asylum Regulations in U.S. District Court[3]
A lawsuit challenging the new asylum rule was filed with the U.S. District Court for Northern California. The U.S. Government obviously opposed this lawsuit and submitted an affidavit by Blas Nuñez-Neto, assistant secretary of homeland security for border and immigration policy, that described the real-world alternatives to the new rule: Customs and Border Patrol “facilities will be overcrowded once again, placing the noncitizens in our custody and the front-line personnel who care for them at risk.” Border communities “will once again receive large scale releases of noncitizens that will overwhelm their ability to coordinate safe temporary shelter and quick onward transportation.” And interior cities such as New York “will, once again, see their systems strained.”
Therefore, the U.S. Government argued that the Biden plan is necessary to the government’s “continued ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system.”
Nevertheless, on July 25, 2023, Judge Jon S. Tigar of the U.S. District Court for Northern California held that these new restrictions were “both substantively and procedurally invalid.” The Judge said, “The court concludes that the rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum.”
The judge, however, “immediately stayed his decision for 14 days, leaving the asylum policy in place while the federal government appealed the decision.”
An ACLU attorney for the plaintiffs said this 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.”
According to the Homeland Security Secretary, Alejandro N. Mayorkas, however, “the administration strongly disagreed with the decision. With the policy still in place while the decision is appealed, he added, migrants who did not follow the current rule would face stiff consequences.” This result “does not limit our ability to deliver consequences for unlawful entry,” including prompt removal, a future bar on admission and potential criminal prosecution.”
Appeal About Asylum Rules in Court of Appeals[4]
The U.S. Government took an immediate appeal from Judge Tigar’s decision, and on August 3, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit decided, 2 to 1, that the pause or stay of the District Court’s decision invalidating the Biden Administration’s new asylum restrictions should continue for as long as it takes the appellate court to rule on the case. The appellate court also stated that it would “expedite its consideration of the government’s appeal and said that briefs from both sides would be due by the end of September at the latest. A hearing will follow.”
The two judges in the majority—William A. Fletcher and Richard A. Paez—did not explain their reasoning.
However, the dissenting judge, Lawrence Van Dyke, said that the majority judges did not give the Trump Administration the same deference when the court invalidated asylum restrictions, which were practically the same as those adopted by the Biden Administration. Van Dyke more colorfully said that Biden’s asylum restrictions were so similar to the Trump administration’s that it looks like they “got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”
A spokeswoman for the Department of Homeland Security, Erin Heeter, responded to this appellate ruling. She said, “We will continue to apply the rule and immigration consequences for those who do not have a lawful basis to remain in the United States. The rule has significantly reduced irregular migration, and since its implementation on May 12 we have removed more than 85,000 individuals. We encourage migrants to ignore the lies of smugglers and use lawful, safe and orderly pathways.”
Katrina Eiland, the ACLU lawyer who argued the case for the plaintiffs, had a different reaction. She said, “We are confident that we will prevail when the court has a full opportunity to consider the claims. We are pleased the court placed the appeal on an expedited schedule so that it can be decided quickly, because each day the Biden administration prolongs its efforts to preserve its illegal ban, people fleeing grave danger are put in harm’s way.”
Conclusion
We all now await the parties’ appellate briefs and oral arguments followed by the Court of Appeals decision and then potential further proceedings in that court and the U.S. Supreme Court.
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[1] Biden Administration Announces Proposed Restrictions on Asylum Applications, dwkcommentaries.com (Feb. 27, 2023). h
[2] Meko & Vitchis, New Migrants Have a Year to Apply for Asylum. Many Won’t Make It, N.Y. Times (July 3, 2023); Sullivan, Lawyers Say Helping Asylum Seekers in Border Custody Is Nearly Impossible, N.Y. Times (July 22, 2023);Shear, Turkewitz & Sandeval, How and Why Illegal Border Crossings Have Dropped So Dramatically, N.Y. Times (July 26, 2023);
[3] Jordan & Sullivan, Federal Judge Blocks Biden Administration’s New Asylum Policy, N.Y. Times (July 25, 2023); Hackman & Caldwell, Judge blocks Biden Administration Asylum rules, W.S.J. (July 25, 2023); Editorial: Why are courts messing up a Biden asylum policy that works? Wash.Post ( July 27, 2023).
[4] Shear, Appeals Court Allows Biden’s Asylum Restrictions to Continue for Now, N.Y. Times (Aug. 3, 3023); Sacchetti & Miroff, Biden’s asylum restrictions for migrants may remain in place, federal appeals court rules, Wash. Post (Aug. 4, 2023)