OAKLAND, Calif. (CN) – A federal judge is preparing to rule on whether to grant a summary judgment ending claims against the Biden administration’s revised asylum rule limiting who can seek refuge at the U.S.-Mexican border.
As many people migrate to the United States and Europe to escape persecution and climate change emergencies, the government seeks to enforce a rule which limits people applying for asylum to several options. The end of the Covid-19 health emergency and the related ban on entering the United States triggered a significant systemwide change in how the borders and thousands of asylum seekers were managed.
The American Civil Liberties Union, Southern Poverty Law Center and Center for Constitutional Rights originally sued the federal government in 2018 challenging a proclamation signed by then-President Donald Trump to limit asylum seekers. They claimed the proclamation violated the Immigration and Nationality Act and the Administrative Procedure Act.
U.S. District Judge Jon Tigar temporary blocked the asylum ban in 2018. “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," he wrote.
And in June, the Ninth Circuit granted the Biden administration's request to dismiss as moot its appeal of claims over Trump's ending the temporary legal status program for immigrants from El Salvador, Nicaragua, Sudan and Haiti. The program, active since 1990, provides hundreds of thousands of immigrants from countries deemed unsafe the right to live and work in the U.S. for a temporary, but extendable, period.
That order led Wednesday's hearing, where Tigar heard arguments for and against allowing enforcement of the current asylum rule which limits how people apply for refuge. The government’s attorney Eriz Reuveni told Tigar the Ninth Circuit ruling bars courts from enjoining use of that rule.
“If this rule is set aside, you can expect the number of encounters to immediately go up,” he said. “We are not suggesting that the rule alone is the sole cause of frankly unprecedented drop in encounters, but it’s a strong contributing factor.”
The plaintiffs claimed in recent filings that the government cannot force asylum seekers to apply from other countries, nor force them to choose between three difficult options.
They cited information from migrant advocates saying U.S. and Mexican policies and actions trap migrants in dangerous situations. The policies and actions include such as deploying 4,000 National Guard troops at the border, anti-immigrant discourse of an “invasion” from the south, the closure of shelters and use of the new Title 8. Title 8, which includes decades-old immigration legislation, 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.
"While the prior transit rule was in effect, more than 98% of asylum seekers were unable to satisfy its conditions because of danger and overwhelmed or nonexistent asylum systems other countries,” the plaintiffs say.
ACLU Immigrants' Rights Project lawyer Katrina Eiland told Tigar the rule’s conditions are “nearly entirely illusory” for migrants.
“The government can't pretend that there are several viable options for people to choose from when that's plainly contradicted by the evidence in the record,” Eiland said.
Eiland said documented human rights violations have increased in Central American countries since 2019. She called the government’s portrayal of the rule’s effects “deeply inaccurate” and said the Biden administration should have offered more time for public comment on the rule.
“The fate of Title 42 was known for some time,” Eiland said. “The agencies said they were preparing for 18 months for it to end.”
Reuveni told Tigar things have changed on the ground. Even if the rule does not work for all asylum seekers, “the decisionmakers have decided that that is a tolerable consequence," he said.
Asked if the government sees a correlation between the merit of asylum applications presented at the border and a drop in people at the border, Reuveni said that the government is not making such assumptions.
He also claimed that evidence shows that conditions have improved in countries such as Mexico, Costa Rica and Belize.
“This rule is part of a larger cohesive approach with other Western Hemisphere partners to deal with mass migration,” Reuveni said.
Regardless of how Tigar rules, both sides asked him to stay his decision so they can appeal. Reuveni asked for a 14-day stay and Eiland asked for a week “due to the harm that is occurring at the border right now.”
Tigar said he will issue an order within a week.
Border Patrol Chief Raul Ortiz said in May that “upwards of 60,000” migrants are in Mexican border cities. While immigration experts say the real figure is actually unknown, other sources cite much higher numbers of migrants waiting at the border with the largest concentration in Ciudad Juárez, Chihuahua.
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