Federal judge tosses Biden administration asylum rule designed to reduce illegal border crossings

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A federal judge in California on Tuesday struck down the Biden administration’s temporary restrictions on migrants seeking asylum, ruling that the government’s plan to reduce illegal crossings on the southern border violated federal law.

U.S. District Judge Jon S. Tigar ruled against a system the Biden administration imposed more than two months ago to penalize migrants who crossed the border illegally and reward those who scheduled appointments to seek asylum instead.

Tigar granted the government’s request to delay the ruling from taking effect for 14 days to allow time for officials to appeal.

In his ruling, Tigar sided with advocacy groups who had urged him to reject the restrictions because they said they endangered migrants and violated federal law, which states that anyone on U.S. soil may request asylum, no matter how they arrived.

Tigar said the rule is “is both substantively and procedurally invalid."

The Justice Department signaled to Tigar during a court hearing last week that it would appeal if he ruled against the administration, but officials had no immediate comment Tuesday. The American Civil Liberties Union, which argued the case for the plaintiffs during the hearing, also had no immediate response.

An American Civil Liberties Union lawyer had urged Tigar to let migrants cross into the United States sooner than 14 days, since many were in danger.

Migrants waiting for appointments in squalid camps in Mexican border cities have been targets for rape and kidnappings for ransom, according to Human Rights First, a nonprofit that has tracked the incidents. Some migrants have been killed.

Lawyers for the Biden administration had told Tigar in court records that overturning the restrictions could have a “chaotic impact” on the border, and that they feared migrants would rush the international boundary and overwhelm the Border Patrol.

Tigar wrote that he was aware that since the rule took effect the number of border apprehensions had dropped, and that setting aside the rule could lead to more migration.

Officials imposed the temporary rules in May as they ended a pandemic policy known as Title 42 that allowed border agents to quickly expel asylum seekers without a hearing.

The rules presume that migrants are ineligible for asylum if they crossed the border illegally or traveled through another country and failed to seek protection there. Asylum seekers can ask to get into the United States legally via an app or if a U.S. resident sponsors them to enter via a system known as “parole.” Migrants can also ask to bypass the restrictions if they face a serious health condition or an imminent safety threat.

After entering legally, they can apply for asylum.

Biden administration officials say the rules, in part, contributed to a nearly 42 percent drop in illegal border crossings in June, the first full month the policy was in effect. The Border Patrol made 99,545 arrests last month, the lowest monthly tally since Biden took office.

To qualify for asylum, which can lead to U.S. citizenship, a migrant must have a well-founded fear that they will face persecution in their native country because of their race, religion, nationality, political opinion or another characteristic.

Asylum requests have soared in recent years to a historic high of more than 1.5 million, according to the Transactional Records Access Clearinghouse at Syracuse University, driving concerns that migrants are claiming fear to get into the United States, where they can live and work legally for years as they await a hearing in the backlogged immigration courts.

Most asylum seekers lose their cases, officials said, but they are rarely deported because of staffing shortages and policies that discourage the deportation of migrants with deep roots in the United States.

Tigar’s decision Tuesday echoed his prior rulings on the issue under the Trump administration, which had instituted similar restrictions on asylum seekers.

In 2018, Tigar temporarily blocked the Trump administration from denying asylum to migrants who crossed the southern border illegally. The U.S. Court of Appeals for the 9th Circuit and the Supreme Court declined to stay that decision.

Tigar also shot down a 2019 rule that forbid migrants from seeking asylum if they had failed to ask for refuge in a country they passed through on their way to the U.S.-Mexican border. The rule does not apply to Mexican citizens.

Blas Nuñez-Neto, the top border policy official at the Department of Homeland Security, said last week that he worried the backlogged immigration courts were becoming a draw to migrants, who are paying smugglers $10,000 to $15,000 to take them on perilous trips to the border, including 50-mile treks through the Darien Gap, the jungle linking Central and South America.

“We are seeing the court system essentially become a proxy legal pathway for people to come into the United States and work while they’re here,” he said at an event hosted by the Migration Policy Institute, a think tank.

Immigration courts Director David Neal said at the event that immigration officers are filing twice as many cases as the judges are adjudicating.

Judges are on track to complete nearly 500,000 cases this year, a record, but they expect 1 million new cases this year.

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