Immigration Law

Biden administration will appeal decision blocking its tough asylum policy

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AP Title 42 migrants

Migrants stand near the U.S.-Mexico border in Ciudad Juarez, Mexico, on Dec. 19, 2022. A federal judge in California has blocked an immigration rule by the Biden administatration but stayed his decision for two weeks to allow for appeal. Photo by Christian Chavez/The Associated Press.

The Biden administration is appealing a federal judge’s decision blocking an immigration rule that presumes that noncitizens at the southern border are ineligible for U.S. asylum unless they have an appointment or qualify for other limited exceptions.

U.S. District Judge Jon S. Tigar of the Northern District of California blocked the rule but stayed his July 25 decision for two weeks to allow for appeal, according to a July 25 press release by the American Civil Liberties Union, one of the groups representing the plaintiffs.

The Washington Post, the New York Times, Law360 and the Associated Press are among the publications with coverage.

Under the rule, the presumption of asylum ineligibility applies except in three instances: when noncitizens receive advance permission to travel here through a parole process, when they have a scheduled appointment, or when they are denied asylum by a country on their way to the United States. The presumption can be rebutted with a showing of exceptionally compelling circumstances.

Tigar was appointed by former President Barack Obama. Former President Donald Trump had called Tigar an “Obama judge” when Tigar blocked the Trump administration’s asylum restrictions. One of the blocked Trump-era rules required asylum applicants to enter the country at a port of entry. The other categorically required asylum-seekers to apply for asylum in at least one country that they enter while traveling to the United States.

The 9th U.S. Circuit Court of Appeals at San Francisco agreed that both Trump administration rules should be blocked, ruling in the travel-rule case after the U.S. Supreme Court in September 2019 allowed the rule to take effect pending appeal.

The new case was filed as a motion to file an amended complaint in the Trump-rule cases.

In the revised case, Tigar said the Biden administration’s asylum rules violated the Administrative Procedure Act because they are contrary to federal law, they are arbitrary and capricious because of faulty reasoning, and they allowed only 30 days for comment before the policy change.

The Immigration and Nationality Act allows anyone who reaches the United States to apply for asylum, whether or not they arrived at a designated point of arrival, Tigar said. Congress has also made clear that failure to apply for asylum in another country should bar asylum only if the other country is a safe option.

The administration adopted the new policy after it ended a policy known as Title 42 that had been used to quickly expel migrants without examining their asylum claims. Section 265 of 42 U.S. Code allows the government to prevent migrants from entering the country to prevent the spread of disease.

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