America’s immigration law and previous rulings mean a court will likely block the Biden administration’s immigration rule that limits how individuals can apply for asylum. The American Civil Liberties Union filed a lawsuit challenging the rules. History shows providing multiple legal avenues to enter the United States the best way to prevent illegal entry. The Biden administration will likely have to expand such avenues, though its parole programs face a separate legal challenge.

Regulation on Asylum

On May 10, 2023, the Department of Homeland Security and the Department of Justice announced a final rule introducing a “rebuttable presumption of ineligibility for asylum” for individuals who do not apply for asylum at a port of entry by appointment or enter the United States through normal immigration channels. Those channels include recently established parole programs for Venezuela, Cuba, Haiti and Nicaragua that have reduced illegal entry into the United States. Border Patrol Encounters on the southwest border dropped 95% for Cuba, Haiti, Nicaragua and Venezuela as a group between December 2022 and March 2023, according to the National Endowment for American Policy analysis.

The rule is significantly different from how the US government treated asylum seekers before the Trump administration and the Covid-19 pandemic. The Trump administration released rules that sought to limit the ability of individuals to apply for asylum. However, the Trump administration’s most important policy legacy on asylum was Title 42, which the Biden administration repealed at the same time the asylum rule went into effect.

After the pandemic began, Trump’s White House adviser Stephen Miller pushed the Centers for Disease Control and Prevention to issue a Title 42 order that allows Border Patrol agents to turn back people crossing the border without the ability to apply for asylum, the report said. The Wall Street Journal. “A review of internal government documents and interviews with people involved in the process . . . show that the policy was driven by administration immigration officials over the objections of senior CDC officials,” the paper said. “Even before the coronavirus pandemic, Mr. Miller explored the possibility of declaring a public health emergency at the border — perhaps over an outbreak of influenza or measles at border detention centers — which he believed would give the government the ability to denying asylum seekers the chance to submit their claims.”

Immigration Law

The first legal hurdle the Biden administration’s asylum rule must overcome is a simple reading of the Immigration and Nationality Act (INA). (A March 2023 Forbes article analyzed why the court might overturn the decree.)

Immigration lawyers say the rule is illegal because the law allows “any an alien . . . whether at a designated port of arrival or not” to apply for asylum.

According to US immigration laws“Any an alien which is physically present in United States or who arrives at United States (regardless of whether it is at a specific port of arrival, incl an alien which was brought to United States after being prevented in the international or United States water), regardless alien’status, can apply for asylum. . .”

Generally, DHS and DOJ argue that, notwithstanding that part of the statute, the regulation is valid because the law allows asylum “in accordance with requirements and procedures established by the Secretary of Homeland Security or State Prosecutor . . . ” Moreover, the secretary is in charge “of management and execution [the INA] and all other laws relating to the immigration and naturalization of aliens.”

Many lawyers are not convinced. “The rule is not only unlawful because it violates statutory language, but also because it is discriminatory, denies meaningful access to asylum, and violates the requirement in the Refugee Convention and Protocol to favor accuracy over expediency,” according to Dree Collopy, managing partner of Benach Collopy and leading asylum expert.

Previous judgments

The ACLU’s lawsuit, filed in the U.S. District Court for the Northern District of California, claims the Biden immigration rule suffers from already seen. “The new rule repeats two attempts by the Trump administration to limit the right to asylum”, according to prosecutors. “The first was based on the asylum seekers’ mode of entry (“entry ban”) and the second was based on their transit through third countries en route to the US southern border (“transit ban”). This court has barred these prior prohibitions in decisions affirmed by the Ninth Circuit.”

The “entry ban” did not survive judicial scrutiny. “On February 28, 2020, the Ninth Circuit affirmed the merits of this court’s injunction, reiterating that the injunction violated § 1158(a)(1) and was arbitrary and capricious, and that the government violated the APA [Administrative Procedure Act] . . . Separately, on August 2, 2019, the U.S. District Court for the District of Columbia lifted the asylum ban,” the plaintiffs write.

The “transit ban” fared better, but it was not permanent. “The transit ban went into effect after the Supreme Court decision and remained in effect for nearly a year,” the plaintiffs noted. “For those affected, it worked as an almost complete elimination of asylum. According to government data, the agency found that 98.3% of the more than 25,000 asylum seekers who were subject to a transit ban during that time did not qualify for any exception and were therefore denied asylum.

“Meanwhile, separate plaintiffs also challenged the transit ban in D.C. District Court. On June 30, 2020, that court struck down the transit ban’s interim final rule for violating the APA’s notice and comment requirements.

“The Ninth Circuit affirmed this court’s preliminary injunction against the asylum transit ban on the merits, agreeing that the ban violated § 1158’s firm resettlement and safe third country provisions and was arbitrary and capricious.

“In December 2020, the outgoing administration reissued the transit ban as a final rule, which was ‘an almost verbatim transitional final rule previously ordered by this court.’ This court has preliminarily determined the final rule to be contrary to § 1158 and arbitrary and capricious.”

Prosecutors explained that Trump’s asylum bans were not in effect during the Biden administration because of injunctions and other court decisions.

Plaintiffs in the lawsuit are East Bay Sanctuary Covenant, Central American Resource Center, Al Otro Lado, Innovation Law Lab, Tahirih Justice Center, National Center for Lesbian Rights, Immigrant Defenders Law Center and American Gateways.

The end of Title 42 may not mean the end of the world

The Biden administration’s asylum bill could be a political response to concerns that repealing Title 42 would increase illegal migration. Media attention for the Title 42 finish included front-page news articles and a countdown clock on Fox News.

National Foundation for American Politics analysis found that Title 42 distorted immigration policy and inflated immigration numbers due to the multiple entries of individuals who faced no consequences after being returned under the health law. Customs and Border Protection noted a significant increase in “re-encounters” of the same individuals due to Title 42. It also encouraged others to cross illegally to claim asylum instead of at a port of entry. “Because of Title 42, NFAP estimates that there were approximately 471,000 more encounters at the Southwest border in fiscal year 2021 and about 627,500 more encounters in fiscal year 2022 than if the policy had not been in effect.”

Some analysts note that the most significant problem facing the Biden administration is falling into the trap of judging it based on marginal numbers rather than explaining that the Western Hemisphere is experiencing historic refugee crisis. “More people across Latin America are leaving their homes for the United States than at any other time in six decades,” he reports The New York Times. Violence, political repression and economic mismanagement have stopped 7 million people to leave Venezuela. Crises in Cuba, Nicaragua, Haiti, Colombia, Ecuador, Peru and other Latin American countries have also encouraged people to leave their homes.

Some argue that people come to the US border solely because of US immigration policy. This does not take into account the events in Latin America that have led people to become refugees who also need work to support their families.

The Biden administration has provided pathways to legal entry, including parole programs that offer humane access and have helped reduce illegal entry. NFAP’s comment letter on the asylum rule stated that the rule assumes parole programs will continue. However, Republican attorneys general did filed for a temporary injunction to stop parole programs for Venezuela, Cuba, Haiti and Nicaragua, claiming they are illegal.

DHS and DOJ responded in a rule to NFAP’s comment letter: “If this litigation results in an injunction or other parole proceeding, the Departments do not believe that such an injunction or stay would affect the application of this rule. Parole process. . . they do not represent the only options available to non-citizens seeking entry to the United States.” It is true that parole programs are not the “only available options” for non-citizens, but adding up to 30,000 more asylum seekers each month at points of entry would make the appointment rule requirement a more significant barrier to individuals seeking asylum.

A court may block a rule by the Biden administration to limit how people can apply for asylum. This means it will provide more opportunities for individuals to apply for asylum at ports of entry to discourage dangerous journeys across the US border.