OAKLAND, Calif. (CN) — Just hours after a federal judge on barred the Biden administration’s restrictions on how people can seek refuge in the United States, the administration announced it would appeal the Tuesday order, opening the next chapter of litigation that has twisted through two presidential administrations and a global pandemic.
U.S. District Judge Jon Tigar ruled in favor of plaintiffs after a hearing last week where attorneys for the government tried to persuade him to end claims against Biden’s revised asylum rule limiting who can seek refuge at the U.S.-Mexican border.
The order removes a key enforcement tool the federal government has used since coronavirus-based restrictions on asylum, known as Title 42, expired in May.
On May 16 the federal government published the Circumvention of Lawful Pathways rule, applying a presumption of asylum ineligibility to people traveling through a country other than their own before entering the United States through the southern border. Under exception, and able to seek asylum, are unaccompanied children, those authorized to travel to the United States and those who present at a port of entry or have been denied asylum or protection in another country.
Organizations that represent and assist asylum seekers who first sued the Trump administration in 2018 claimed in recent filings that the government cannot force asylum seekers to apply from other countries, nor force them to choose between limited options. While immigration experts say the real figure is unknown, some sources say at least 60,000 migrants wait at the border, with the largest concentration in Ciudad Juárez, Chihuahua.
Migrant advocates say U.S. and Mexican policies and enforcement effectively trap migrants at the border with the help of 4,000 National Guard troops. The policies have led to closed shelters and the revival of decades-old immigration legislation called Title 8, which allows U.S. border authorities to put asylum seekers in an expedited removal process and prohibits anyone caught crossing illegally from reentering or seeking asylum for five years.
Finding the rule arbitrary and capricious, Judge Tigar determined it relies on the availability of other pathways for migration to the United States, which he said Congress did not intend, and provides very limited exceptions.
Because Customs and Border Protection access is limited to central and northern Mexico, asylum seekers must stay in those areas until they have an appointment. They cannot seek online appointments with the agency easily due to unreliable Wifi, lack of access to smartphones and online language barriers and delays.
"While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors," Tigar wrote in a 35-page order.
The judge agreed with the plaintiffs' reasoning that migrants may not be able to seek protection in another country under the rule’s restrictions.
"Seeking protection in a transit country is similarly infeasible for many asylum seekers subject to the Rule. The preamble to the Rule notes that, while the agencies 'recognize that not every country will be safe for every migrant,' they 'expect that many migrants seeking protection will be able to access asylum or other protection in at least one transit country,'" Tigar wrote. "The record evidence available to defendants, however, undermines this finding."
The judge pointed out that the government's rule "only specifically discusses Belize, Colombia, and Mexico as countries where noncitizens can effectively seek protection." By migrants passing through each of those countries face an outsize risk of violence, the judge said. Plus the asylum system in Belize is seriously limited: Of the 4,101 applications for asylum the country received, it has granted just 74.
Calling the rule "both substantively and procedurally invalid,” Tigar said conditions to the rule's exceptions are complex and unavailable to most. For instance, he rejected the government’s claims that it provided other avenues for people, like a program that allows up to 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela if they have a sponsor and fly in. The judge called those avenues “irrelevant” since they are not available to all.
The rule itself is illegal, Tigar found, because it presumes that people are ineligible for asylum if they enter the country between legal border crossings.
Biden's administration has two weeks to appeal the ruling.
"The court got it right," said Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, in a statement Tuesday.
Crow said the government admitted in court that it can bar people with legal claims and deport them to countries where they face harm.
"To them, that is an acceptable price to pay for the illusion of border management," Crow said. "But they are breaking the law, sowing chaos and putting vulnerable people in harm’s way."
Other advocates encouraged the Biden administration to now use its resources to reinforce rights for migrants and abandon its efforts to keep the asylum restrictions in place.
“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,” said Katrina Eiland, deputy director of the Immigrants’ Rights Project.
However within hours of the ruling the government announced its intention to appeal, filing a motion to stay the order as pending appeal and an emergency motion to shorten the time to grant that stay.
Tigar denied the request on Tuesday afternoon and gave the plaintiffs until 5 p.m. Wednesday to respond to the emergency motion to stay.
"We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws," said Terrence Clark of the Department of Justice's public affairs office.
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