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Photo: Drew Angerer/Getty Images

Biden Administration’s asylum policy blocked by federal judge

The policy contributed to a decrease in crossings at the border since May. It’s another legal blow to the administration’s immigration policy response.

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An Obama-appointed federal judge on Tuesday blocked the Biden Administration’s immigration policy that denies asylum to migrants who arrive at the U.S.-Mexico border without first applying online or seeking protection in a country they passed through. 

U.S. District Judge Jon Tigar of the Northern District of California delayed his ruling from taking effect for 14 days in order to give the administration time to appeal. The policy will remain in place in the meantime and the appellate court could extend the stay while it considers the challenge.

Most people are disqualified from applying for asylum under the policy if they have crossed into the United States without either securing an appointment at an official port of entry or proving that they sought legal protection in another country along the way.

“The Justice Department disagrees with the district court’s ruling today in the East Bay case and intends to appeal the decision and to seek a stay pending appeal. 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,” a DOJ spokesperson said in a statement.

Immigrant advocacy groups had previously challenged the administration’s policy that limits who is allowed to apply for asylum. They said the policy violated immigration law, which says that foreigners who reach U.S. soil are entitled to request asylum, no matter the method of entry. 

“The court’s ruling is welcome and expected, since the new policy simply rehashed prior rules that restricted access to asylum based on similar grounds, which courts already rejected. U.S. laws protect the rights of people fleeing persecution to come to this country and pursue asylum, full stop. We encourage the Biden administration to now direct its resources to upholding that right, rather than fighting to continue this unlawful and inhumane asylum ban,” Keren Zwic, director of litigation at the National Immigrant Justice Center said in a statement.

Judge Tigar, in a 35-page decision, said he had found the policy, “both substantively and procedurally invalid” and he noted that he rejected a similar rule put in place by the Trump administration back in 2019. 

The judge cited several legal faults and raised concern about a measure that requires most asylum applicants to present themselves at established ports of entry instead of claiming asylum after crossing between border posts.

“The court concludes that the rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum,” Judge Tigar wrote

Biden’s immigration policy response has in part led to a decrease in crossings at the border since taking effect in May. While some immigration experts credit the use of the CBP One app, voluntary departure and the expansion of legal pathways. 

In June, fewer than 100,000 people were arrested, the lowest figure since February 2021. 

“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,” Katrina Eiland, deputy director of the Immigrants’ Rights Project of the American Civil Liberties Union, who argued the case for the plaintiffs, said in a statement.

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