Appeal Court: Biden's Asylum Restrictions Can Remain For Now

Updated August 4, 2023, 10:20 a.m. PST

• The San Francisco-based 9th Circuit Court of Appeals ruled yesterday that Biden's strict asylum rules for migrants at the U.S.-Mexico border can remain in place for now.
• The court granted a temporary stay of an earlier ruling that would have stopped the restrictions this week. The earlier ruling found that the asylum rule violated U.S. law.
• The panel of judges voted 2-1. Judges William Fletcher and Richard Paez, both appointees of former President Bill Clinton, voted in favor of a temporary stay, while Judge Lawrence VanDyke dissented, writing that the Biden administration’s policy was not “meaningfully different” from Trump's border policies.
• Judge VanDyke continued:

"This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”

• Migrants rights groups have sued to try to stop the rule, but the Biden administration has argued that it has reduced unlawful border crossings.
• The appeals court said it would expedite the appeals process. Katrina Eiland from the American Civil Liberties Union said:

“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."

Updated July 28, 2023, 12:30 p.m. PST

• A federal judge has blocked a rule that allows immigration authorities to deny asylum to seekers at the U.S.-Mexico border without applying beforehand or seeking protection in transit countries before they reach the U.S.
• U.S. District Judge Jon Tigar from the Northern District of California, an Obama appointee, delayed his ruling from taking effect for 14 days, which will give the Biden administration time to appeal. Tigar stated that "the Rule — which has been in effect for two months — cannot remain in place."
• The Justice Department immediately appealed the order and requested that it be put on hold while the case is heard. The agency said it's confident that Biden's asylum rule is lawful.
• Judge Tigar's ruling eliminates one of the Biden administration's key enforcement tools, which came into effect after the coronavirus-based Title 42 expired in May. The rule imposes limits on migrants seeking asylum via the border, with limited exceptions, such as minors traveling alone.
• The American Civil Liberties Union (ACLU) argued that the asylum rule violates a U.S. law that protects the right to asylum, regardless of how or where migrants enter the country. The group argues that the rule forces migrants to seek out asylum in countries that do not have strong human rights records.
• Judge Tigar rejected the administration's argument that it has created robust alternative pathways. The Biden administration pointed to a program that allows migrants from Cuba, Haiti, Venezuela, and Nicaragua to seek asylum if they have a sponsor and if they fly into the U.S. rather than transit via the border. The judge dismissed this as prohibitive for most migrants. 
• Judge Tigar also said that demand for asylum appointments vastly exceeds the 1,450 available daily via the CBP One app which border officials require migrants to use to set up asylum appointments. Human rights groups also point to the tech failures and barriers associated with the CBP One app.
• Human rights groups have applauded the ruling. ACLU attorney Katrina Eiland said:

"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."

• Judge Tigar said:

"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."

Updated May 11, 2023

• The Trump-era policy Title 42 is expiring tonight. The policy allowed the government to automatically deport any undocumented migrants, including asylum seekers, ostensibly on Covid-19 public health emergency grounds.
• Over 2.8 million people were deported under Title 42.
• The administration is reverting back to its earlier asylum policy, Title 8, with key additions.
• Biden's new policy rule requires migrants and asylum seekers to book appointments via the border app, CBP One. Migrants without appointments will be turned away at the border.
• The CBP One app has been beset by technical difficulties and inherent racial bias.
• Asylum seekers will be ineligible for U.S. protection if they "circumvent" legal pathways, which has raised vocal concerns from human rights activists.
• Biden has just deployed 1,500 personnel to the border in expectation of a surge of migrants following the expiration of Title 42.
• Human rights groups believe the fear of a surge is misplaced, pointing to the fact that Title 42 did not truly deter attempted migrations, and that border crossing attempts are at their highest rate in decades.
• Activists worry about a worsening crisis of stranded migrants in Mexico’s border cities, leading to crime and human rights abuses.
• There is also concern that migrants will be misled by people smugglers' about the significance of May 11, and will not be given adequate information about U.S. asylum policies.
• In Mid-April, CBP’s acting commissioner, Troy Miller said:

“The United Nations recently estimated that there are approximately 660,000 migrants currently in Mexico, including over 200,000 Haitian and Venezuelan nationals, in addition to 287,000 internally displaced Mexican nationals. Many of these individuals could attempt to enter the United States in the near term.”

• The Department of Homeland Security has said that migrants apprehended under Title 8 will face expedited removal and a possible ban on reentry for five years. Subsequent attempts could lead to criminal prosecution.

The Biden administration's asylum policy

• The Biden administration has been cracking down on asylum seekers in anticipation of the end of COVID-era immigration restrictions.
• Title 42 allowed U.S. authorities to expel migrants, regardless of nation of origin, to Mexico, without giving them a chance to claim asylum. Title 42 is scheduled to end on May 11, 2023.
• Biden's new asylum rules create a legal pathway for migrants to claim asylum in the U.S., but they also empower border staff to turn away migrants who have not taken advantage of legal pathways--sending individuals and families back to Mexico or their home countries.
• The U.S. has seen an unprecedented surge of immigration in the past year, due to conflict, gang violence, poverty, and natural disasters in countries like Venezuela, Haiti, and Honduras.
• On Jan. 5, Biden said:

"We can't stop people from making the journey. But we can require them to come here — that they come here in an orderly way under U.S. law."

• Read the full Circumvention of Lawful Pathways document.

What are the rules?

• The proposed rule would make asylum seekers ineligible for U.S. protection if they "circumvent" legal pathways.
• Asylum seekers must now use an app to schedule an appointment for an asylum hearing at the U.S.-Mexico border in advance of arrival or they will be turned away at the border.
• The app, CBP One, has been used by over 20,000 people.
• Border officials praise the app for reducing detentions and expulsions at the border, and discouraging migrants from making the dangerous journey North without consent from U.S. border security.
• The app has been beset by difficulties, however. It has struggled to read the faces of darker-skinned applicants, preventing them from taking a mandatory photo to proceed with their application. The app also requires a degree of tech fluency, access to a newer model phone, and a reliable internet connection, creating further barriers for migrants fleeing conflict and poverty.

What people are saying

• A senior official with the Biden administration defended the stricter rules, telling reporters:

"It is intended to fill the void that Congress has left by taking no action, and to help us ensure secure and humane processing of migrants when Title 42 does lift. This administration just won't allow mass chaos and disorder of the border because of Congress's failure to act."

• Krish O'Mara Vignarajah, CEO of Lutheran Immigration and Refugee Service, told NPR the rules are a betrayal of Biden's campaign promises:

"[I]t violates President Biden's own promises to restore asylum. This is very nearly a carbon copy of the Trump asylum ban that was blocked by the courts just a few years ago."

Immigration stats

• In May of 2022, U.S. law enforcement recorded 239,416 encounters at the Mexico border, the highest monthly number ever recorded.
• The International Organization for Migration estimates that there have been over 4,000 deaths at the U.S.-Mexico border since 2014, with countless migrants missing.
• There is also a growing rate of unaccompanied minors reaching the border. In the first half of the 2022 fiscal year, 100,336 unaccompanied minors were detained by U.S. border authorities.
• In March, in the Mexican state of Veracruz, 103 unaccompanied migrant children were found with 212 unrelated adults in an abandoned truck. It is the largest discovery of migrant children found in recent history.
• A recent rush at the border, the capsizing of a migrant boat, and a fatal bus crash carrying migrants destined for the border have highlighted the growing plight of thousands of people seeking a better life.

How should the Biden administration handle asylum and immigration?  Contact the White House and take action on asylum seekers now.

—Emma Kansiz