The Volokh Conspiracy
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In May, the Biden administration instituted what I have called a "Trump-lite" asylum policy, severely restricting asylum applications by migrants crossing the southern border. The policy came into effect after the White House finally ended Title 42 "public health" expulsions of migrants, which both Trump and Biden had perpetuated long after it became clear that the policy was not effective in its ostensible purpose the spread of Covid to the United States.
Today, in a lawsuit brought by the ACLU and other immigrant rights organizations, federal district Judge Jon Tigar of the Northern District of California issued a ruling holding that Biden's new asylum restrictions are illegal. The decision is unsurprising, given that the same judge had previously issued a ruling against a similar Trump policy in 2019 (it was upheld on appeal). The Biden policy, like Trump's before it, violates the plain text of the Refugee Act of 1980, which as Judge Tigar notes, "provides that any noncitizen who arrives in the United States, 'whether or not at a designated port of arrival' and 'irrespective of [their] status, may apply for asylum.'" Asylum can then be granted if the migrant in question is "unable or unwilling to return to" his or her home county "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Asylum can potentially be denied if the migrant had a "safe option" for refuge in another country.
By contrast, under the new Biden policy, non-Mexican migrants who cross the southern border are presumptively barred from applying for asylum unless they fall within certain specified exceptions:
[U]nder the Rule, noncitizens other than Mexican nationals who cross the southern border are presumed ineligible for asylum unless they (1) have received advance permission to travel to the U.S. to apply for parole; (2) present at a port of entry for a pre-scheduled appointment (or without an appointment, if they can demonstrate an "ongoing and serious obstacle" that precluded pre-scheduling); or (3) have already sought and been denied asylum or other protection in another country en route to the U.S.
The Biden Administration argues that these exceptions distinguish the policy from the previously invalidated Trump rule, which was more restrictive. It is indeed true that innovations such as the "CNVH" parole policy for migrants from Cuba, Nicaragua, Haiti, and Venezuela and the possibility of making an appointment using an electronic app, make the Biden rule less onerous than Trump's was.
But, as Judge Tigar explains, the new rule still violates the Refugee Act, particularly when it comes to migrants who are ineligible for the exceptions or unable to take advantage of them:
As written, the Rule imposes a presumption of ineligibility on asylum seekers who did not apply for or were granted asylum in a transit country regardless of whether that country is a safe option. That noncitizens may try to escape the presumption by satisfying a different exception, or that the presumption of ineligibility may be rebutted in exceptionally compelling circumstances, does not address whether a noncitizen has a safe option in another country. While Defendants are correct that failure to seek protection in a transit country alone may not be dispositive for many noncitizens subject to the Rule, it would be so for the subset of noncitizens for whom the other exceptions are unavailable. and who cannot rebut the presumption….
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. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress's clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.
Many migrants potentially eligible for asylum cannot take advantage of the various exceptions because they are not from the CNVH nations, have no safe opportunity to apply for asylum elsewhere, and cannot effectively use the often clunky app appointment system. As Judge Tigar notes:
Parole programs are not meaningfully available to many noncitizens subject to the Rule. Though other parole programs exist,…. the Rule generally relies on the parole programs for Cuban, Haitian, Nicaraguan, Venezuelan, and Ukrainian nationals. These programs are country-specific and "are not universally available, even to the covered populations." 88 Fed. Reg. at 31408. The programs are further limited numerically, capped at 30,000 total individuals from Cuba, Haiti, Nicaragua, and Venezuela per month….
Seeking protection in a transit country is similarly infeasible for many asylum seekers subject to the Rule….
Judge Tigar goes on to explain in some detail why many migrants cannot effectively avail themselves of the exception for those who use an app to make an advance appointment.
The judge also ruled against the policy because he concluded that it is "arbitrary and capricious" in violation of the Administrative Procedure Act (APA), and because the rule-making process did not give members of the public (including the plaintiffs) sufficient opportunity to comment on the proposed policy, thereby violating the APA in a different way. I find these arguments less persuasive than the straightforward statutory point. But I will leave them to commentators with greater administrative law expertise.
Regardless, Biden's policy here, like Trump's seems clearly contrary to the text of the Refugee Act. On that point, Judge Tigar's reasoning seems very strong.
The Biden Administration is going to appeal this ruling to the US Court of Appeals for the Ninth Circuit. But unless the Ninth Circuit overrules its decision striking down the Trump asylum policy, it seems likely Judge Tigar's ruling will be upheld. Perhaps the case will then go to the Supreme Court. The conservative justices there tend to be supportive of executive discretion in immigration policy. But should the Court take the case, they might not be willing to go against a statutory text as clear as the one here.
In the meantime, Judge Tigar has stayed implementation of his ruling for 14 days, to give the administration a chance to appeal and apply for a permanent stay. If the Ninth Circuit denies the stay or if it ultimately uphold the lower court decision on the merits, a key part of the Administration's border policy will have been swept away.
In my view, the better approach to border management is not to preemptively bar asylum-seekers fleeing terrible conditions, but to make legal migration easier—thereby obviating the need for many migrants to come to the border at all, and enabling others to quickly move on to their final destinations in the interior. Some of the Biden administration's other policies effectively demonstrate this point.
Regardless, Biden, like Trump before him has tried to bar asylum seekers in a way that blatantly violates the text of the law. Hopefully, this litigation will force the administration to back off and reconsider.