U.S. immigration law and previous rulings mean the chances are good a court will block the Biden ... [+]
U.S. immigration law and previous rulings mean the chances are good a court will block the Biden administration’s immigration rule restricting how individuals can apply for asylum. The American Civil Liberties Union has filed a lawsuit challenging the rule. History shows providing more legal pathways to enter the United States is the best way to prevent illegal entry. The Biden administration will likely need to expand such pathways, although its parole programs face a separate legal challenge.
The Asylum Regulation
On May 10, 2023, the Department of Homeland Security and Department of Justice posted a final rule introducing a “rebuttable presumption of asylum ineligibility” for individuals who fail to apply for asylum at a port of entry with an appointment or enter the United States via normal immigration channels. Those channels include the recently established parole programs for Venezuela, Cuba, Haiti and Nicaragua that have reduced illegal entry to the United States. Border Patrol encounters at the Southwest border declined by 95% for Cuba, Haiti, Nicaragua and Venezuela as a group between December 2022 and March 2023, according to a National Foundation for American Policy analysis.
The rule differs significantly from how the U.S. government treated asylum seekers before the Trump administration and the Covid-19 pandemic. The Trump administration published rules that sought to restrict the ability of individuals to apply for asylum. However, the Trump administration’s most important policy legacy on asylum was Title 42, which the Biden administration lifted at the same time its asylum rule took effect.
After the pandemic began, Trump White House adviser Stephen Miller pushed the Centers for Disease Control and Prevention to issue an order under Title 42 that allowed Border Patrol agents to return border crossers without an opportunity to apply for asylum, reported the Wall Street Journal. “A review of internal government documents and interviews with people involved in the process . . . show the policy was driven by immigration officials in the administration over the objections of senior officials at the CDC,” according to the newspaper. “Even before the coronavirus pandemic, Mr. Miller had explored the option of declaring a public-health emergency at the border—perhaps around a flu or measles outbreak in border-detention centers—which he believed would give the government the option of denying asylum seekers a chance to make their claims.”
Immigration Law
The first legal hurdle the Biden administration’s asylum rule must overcome is a plain reading of the Immigration and Nationality Act (INA). (A March 2023 Forbes article analyzed why a court might overturn the regulation.)
Immigration attorneys say the rule is unlawful because the law allows “any alien . . . whether or not at a designated port of arrival” to apply for asylum.
Under U.S. immigration law, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . .”
In the rule, DHS and DOJ contend that notwithstanding that part of the statute, the regulation is valid because the law allows asylum “in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General . . . ” Moreover, the Secretary is charged “with the administration and enforcement of [the INA] and all other laws relating to the immigration and naturalization of aliens.”
Many attorneys are not convinced. “The rule is not only unlawful because it violates the statutory language, but also because it is discriminatory, denies meaningful access to asylum and violates the requirement under the Refugee Convention and Protocol that accuracy be favored over expediency,” according to Dree Collopy, managing partner of Benach Collopy and a leading asylum expert.
Earlier Rulings
The ACLU lawsuit, filed in the U.S. District Court for the Northern District of California, argues the Biden immigration rule suffers from a case of déjà vu. “The new Rule reprises two attempts by the Trump administration to restrict asylum eligibility,” according to the plaintiffs. “The first was based on an asylum seeker’s manner of entry (the “entry ban”) and the second was based on their transit through third countries on their way to the southern U.S. border (the “transit ban”). This Court enjoined these earlier bans in decisions affirmed by the Ninth Circuit.”
The “entry ban” did not survive court scrutiny. “On February 28, 2020, the Ninth Circuit affirmed this Court’s injunction on the merits, reiterating that the ban contravened § 1158(a)(1) and was arbitrary and capricious, and that the government violated the APA [Administrative Procedure Act] . . . Separately, on August 2, 2019, a district court in the District of Columbia vacated the asylum entry ban,” write the plaintiffs.
The “transit ban” fared better but was not permanent. “The transit ban took effect following the Supreme Court’s stay decision and remained in place for nearly a year,” note the plaintiffs. “For those to whom it applied, it functioned as a near-total elimination of asylum. According to government data, the agency determined that 98.3% of more than 25,000 asylum seekers subjected to the transit ban during that time failed to qualify for any exception and were thus barred from asylum.
“Meanwhile, separate plaintiffs had also challenged the transit ban in the D.C. district court. On June 30, 2020, that court vacated the transit ban interim final rule for violating the APA’s notice-and-comment requirements.
“The Ninth Circuit affirmed this Court’s preliminary injunction against the asylum transit ban on the merits, agreeing that the ban conflicted with § 1158’s firm resettlement and safe third country provisions and was arbitrary and capricious.
“In December 2020, the outgoing administration re-issued the transit ban as a final rule, which was ‘almost verbatim the interim final rule this Court previously enjoined.’ This Court preliminarily enjoined the final rule as contrary to § 1158 and arbitrary and capricious.”
The plaintiffs explained the Trump asylum bans were not in effect during the Biden administration due to the injunctions and other court rulings.
The plaintiffs in the lawsuit are East Bay Sanctuary Covenant, Central American Resource Center, Al Otro Lado, Innovation Law Lab, Tahirih Justice Center, National Center for Lesbian Rights, Immigrant Defenders Law Center and American Gateways.
Ending Title 42 May Not Mean The World’s End
The Biden administration’s asylum regulation might be a political response to concerns that ending Title 42 would increase unlawful migration. Media attention to Title 42 ending included front page newspaper articles and a countdown clock on Fox News.
A National Foundation for American Policy analysis found Title 42 distorted immigration policy and inflated immigration numbers because of multiple entries by individuals who faced no consequences after being returned under the health law. Customs and Border Protection pointed to a marked increase in “repeat encounters” of the same individuals due to Title 42. It also encouraged others to cross unlawfully to apply for asylum rather than at a port of entry. “Due to Title 42, NFAP estimates there were approximately 471,000 more encounters at the Southwest border in FY 2021 and about 627,500 more encounters in FY 2022 than if the policy had not been in place.”
The most significant problem the Biden administration has faced, note some analysts, is falling into the trap of being judged by border numbers rather than explaining the Western Hemisphere is experiencing a historic refugee crisis. “More people across Latin America are leaving their homes and heading to the United States than at any other time in six decades,” reported the New York Times. Violence, political repression and economic mismanagement have forced over 7 million people to leave Venezuela. Crises in Cuba, Nicaragua, Haiti, Colombia, Ecuador, Peru and other countries in Latin America have also encouraged people to leave their homes.
Some argue people are coming to the U.S. border solely because of U.S. immigration policy. That does not consider events in Latin America that have driven people to become refugees who also need work to support their families.
The Biden administration has provided pathways to legal entry, including parole programs that offer a humane approach and have helped reduce illegal entry. An NFAP comment letter on the asylum rule noted that the rule assumes the parole programs will continue. However, Republican attorneys general have filed a motion for a preliminary injunction to stop the parole programs for Venezuela, Cuba, Haiti and Nicaragua, arguing they are unlawful.
DHS and DOJ responded in the rule to the NFAP comment letter: “Should this litigation result in an injunction or other hold on any parole process, the Departments do not believe that such an injunction or hold would affect the application of this rule. The parole processes . . . do not represent the only available options for noncitizens seeking entry to the United States.” It is true the parole programs do not represent the “only available options” for noncitizens, but adding up to 30,000 more asylum applicants each month at ports of entry would make the scheduled appointment requirement in the rule a more significant barrier to individuals seeking asylum.
A court may block the Biden administration’s rule to restrict how people can apply for asylum. That means providing more opportunities for individuals to apply for asylum at ports of entry will be necessary to discourage dangerous journeys across the U.S. border.
