In a significant blow to the Biden administration’s immigration strategy, a federal judge has ruled against a central asylum policy instituted post-Title 42. The rule, introduced in May, renders migrants ineligible for asylum if they have entered the U.S. illegally and did not utilize the expanded legal pathways offered by the federal government.
The Ruling: A Breather for Immigration Advocacy Groups
U.S. District Judge Jon Tigar of the Northern District of California blocked the “Circumvention of Lawful Pathways” rule in response to a lawsuit from a coalition of progressive immigration groups. The groups argued that the rule was akin to a Trump-era transit ban that was similarly blocked.
Tigar has postponed his ruling from taking effect for 14 days, allowing the administration to appeal.
The Controversial Asylum Rule: A Tool to Curb Irregular Migration
The asylum rule formed the crux of the Biden administration’s strategy to manage the termination of the Title 42 public health order in May. The law presumes migrants to be ineligible for asylum if they have entered the U.S. illegally and have failed to claim asylum in a country through which they have already travelled.
The administration asserts that the rule is designed to discourage irregular migration and motivate migrants to use the expanded legal pathways, including the controversial CBP One app, which enables migrants to apply for one of the 1,400 appointments at a port of entry each day to be paroled into the U.S.
Criticism of the Asylum Rule
Despite the administration’s rationale, critics argue that the rule is an attempt to redefine illegal crossings as ‘lawful pathways.’ The policy has faced a separate challenge from Republican-led states, asserting it as a “smoke screen.”
The Administration’s Defense
Defending the rule, DHS Secretary Alejandro Mayorkas stated in May, “People who arrive at the border without using a lawful pathway will be presumed ineligible for asylum. We are ready to humanely process and remove people without a legal basis to remain in the U.S.” Mayorkas rebuffed comparisons to the Trump-era transit ban, noting that the presumption of eligibility is rebuttable, unlike the Trump rule.
The Rule’s Insufficiency Under the Administrative Procedure Act
Judge Tigar ruled that the notice procedures in place for the rule are inadequate under the Administrative Procedure Act, which requires certain notice-and-comment periods. The administration provided a 30-day notice period, but Tigar argued that given the rule’s complexity, it was insufficient.
Impact of the Ruling on the Biden Administration
The ruling signifies a major setback for the Biden administration, which had cited a sharp decline in encounters from record highs seen at the beginning of May before the Title 42 order ended on May 11.
As the administration grapples with this blow, Secretary Mayorkas is set to testify to Congress on Wednesday before the House Judiciary Committee.
Stay tuned for more updates on this developing story. Read the latest political news in our politics section and Joe Biden-related news here.
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