A federal judge in San Francisco dealt a major blow to a signature piece of President Joe Biden’s immigration policy on Tuesday, calling its rule that limits who can apply for asylum at the southern border “both substantively and procedurally invalid.”
Lawyers for the Justice Department immediately responded by issuing a notice to appeal the decision in a higher court, and the case is likely to go all the way to the Supreme Court. The Biden administration is fighting to protect its “asylum ineligibility rule,” which requires asylum-seekers to schedule an appointment for an asylum hearing at a legal port of entry or prove that they had already sought and been denied asylum in another country while en route to the U.S.
Judge Jon Tigar also placed a 14-day stay on his own ruling before it takes effect. The delay may effectively keep the administration's asylum policy in place until the Supreme Court can weigh in.
The Biden administration rule has been in place since Covid-19 restrictions known as Title 42 ended in May. Title 42 had blocked more than 2 million border crossings during its three years in place. Observers expected a surge in migrants at the border following the end of Title 42, but the level of crossings actually fell, and the Biden administration argues that the asylum ineligibility policy has limited the number of migrants crossing the border since May. It has argued in court that the asylum ineligibility policy is necessary to control migration during a “time of heightened irregular migration throughout the Western Hemisphere.”
Government lawyers said the Department of Homeland Security anticipates that lifting the rule would mean “a return to elevated encounter levels that would place significant strain on DHS component, border communities, and interior cities.”
In his opinion Tuesday, Tigar said “[t]he Rule — which has been in effect for two months — cannot remain in place, and vacating the challenged Rule would restore a regulatory regime that was in place for decades before.”
Advocacy groups that sued the government to stop the rule from going into effect celebrated the ruling, but said it was past time to lift the asylum ineligibility rule.
Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case, said, “The 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.”
Keren Zwick, director of litigation at the National Immigrant Justice Center, said, “U.S. laws protect the rights of people fleeing persecution to come to this country and pursue asylum, full stop. We encourage the Biden administration to now direct its resources to upholding that right, rather than fighting to continue this unlawful and inhumane asylum ban.”