Biden Administration’s Asylum Rule in Post-Title 42 Strategy Blocked by Federal Judge

The Biden administration’s efforts to manage the ongoing border crisis suffered a significant setback as a federal judge blocked a rule designed to make migrants ineligible for asylum if they entered the country illegally and failed to use lawful pathways established by the government. Judge Jon Tigar from the U.S. District Court for the Northern District of California issued the block in response to a lawsuit filed by left-wing immigration groups, claiming the rule was similar to a Trump-era transit ban that had also been blocked. Judge Tigar found the rule to be “substantively and procedurally invalid” and granted a 14-day delay in its enforcement to allow the administration to appeal.

The rule was a key element of the administration’s strategy to address the expiration of the Title 42 public health order in May. Under this rule, migrants were presumed ineligible for asylum if they entered the U.S. illegally and did not seek asylum in a country they had previously traveled through. The intention was to discourage irregular migration and encourage the use of expanded legal pathways, such as the controversial CBP One app, which allowed migrants to apply for over 1,400 daily appointments at ports of entry to be paroled into the U.S.

However, the presumption of ineligibility could be challenged if migrants could demonstrate exceptional circumstances, and it did not apply to unaccompanied minors. Despite its significance in the administration’s efforts to handle the post-Title 42 surge, it faced criticism from left-wing immigration activist groups, including the ACLU, who considered it cruel and limiting to foreign nationals seeking asylum.

Judge Tigar’s basis for blocking the rule was the insufficient notice procedures under the Administrative Procedure Act, which governs the enactment of rules by federal agencies and requires specific notice-and-comment periods. Though the administration provided a 30-day notice period for the asylum rule, the judge deemed it inadequate due to the rule’s complexity and the agencies’ early preparation for the end of Title 42.

The ruling dealt a major blow to the Biden administration, which had earlier reported a decrease in encounters at the border in June compared to the record highs in early May when the Title 42 order ended. Despite the decline, the June figures of 144,000 migrant encounters remained higher than pre-2021 numbers. The administration had attributed the drop to the rule and the expansion of lawful pathways, claiming it would restore order at the border.

The judge dismissed the administration’s claims that blocking the rule would lead to increased border encounters, stating that the regulatory regime in place before the rule had been effective for decades. Additionally, the rule is facing a separate challenge from Republican-led states, arguing that it is a “smoke screen” to redefine illegal crossings as “lawful pathways.”

In conclusion, the blocking of the asylum rule represents a significant setback for the Biden administration’s efforts to manage the border crisis. With ongoing legal challenges and differing perspectives on immigration policies, the issue remains contentious and will likely continue to be a focal point in political discussions.