Federal Judge Deals Major Blow — Blocks Key Biden Admin Asylum Rule at Core of Post-Title 42 Strategy

The Biden administration was dealt a significant blow in its efforts to control the ongoing border crisis Tuesday when a federal judge blocked a rule that was introduced in May that makes migrants ineligible for asylum if they failed to take advantage of expanded lawful pathways set out by the federal government and entered illegally.

Jon Tigar, U.S. District Judge of the Northern District of California, blocked the Circumvention of Lawful Pathways rule in response to a lawsuit from a group of left-wing immigration groups. The groups claimed the rule was similar to a Trump-era transit ban that had been similarly blocked. Tigar delayed his ruling from taking effect for 14 days to give the Biden administration time to appeal.

The rule shaped the centerpiece of the administration’s strategy to deal with the May expiration of Title 42 public health order. It presumes migrants are ineligible for asylum if they have entered the United States illegally and failed to claim asylum in a country they have already traveled through.

The administration claimed the strategy is designed to discourage irregular migration. It is also meant to encourage migrants to use expanded legal pathways created, including the controversial CBP One app — on which migrants are allowed to apply for one of more than 1,400 appointments at the point of entry daily to be paroled into the United States.

The presumption of ineligibility can be challenged if migrants can prove exceptional circumstances. Officials have rejected comparisons to the Trump-era ban. Additionally, the rule doesn’t apply to unaccompanied minors. It has formed the core of the Biden administration’s efforts to confront a post-Title 42 surge, cooperation with NGOs and Mexico, messaging, and stiffening traditional Title 8 penalties.

It has also set up processing centers across Central America, set up a special parole system for up to 30,000 Venezuelans, Haitians, Cubans, and Nicaraguans each month to fly to the U.S., and continues increasing refugee admissions.

“Starting tonight, people who arrive at the border without using a lawful pathway will be presumed ineligible for asylum. We are ready to humanely process and remove people without a legal basis to remain in the U.S.,” said Alejandro Mayorkas, DHS Secretary, in May. Mayorkas rejected comparisons to the Trump-era transit ban and noted the presumption of eligibility is rebuttable, which was not the case with the Trump rule.

Judge ruled notice procedures for the rule are insufficient

However, Judge Tigar ruled the notice procedures implemented for the rule are insufficient under the Administrative Procedure Act, which requires specific notice-and-comment periods.

Although the administration provided a 30-day notice period, Tigar said that it proved insufficient given the rule’s complexity.

“The complexity of the Rule suggests that 30 days is unreasonable, particularly because the agencies were preparing for the end of Title 42 well before it was announced, such that they could have issued the Notice with sufficient time to grant a longer comment period and still have had the Rule in place when Title 42 expired. The agencies also did not disclose other relevant policy changes that would affect the agencies’ reasoning for adopting the Rule, including one that controverted an assumption central to the agencies’ projection of post-Title 42 encounters at the southern border,” said Tigar.

The block marks a significant blow for the Biden administration, which had pointed to a sharp drop in June encounters from record highs seen at the beginning of May before the Title 42 order ended May 11. It was also dealt a blow when a policy to release migrants into the United States without court dates was blocked after a Florida challenge.

June numbers show 144,000 migrant encounters for the month, the lowest number seen since February 2021, although it still remains higher than pre-2021 numbers. The administration cited the number to show that the combination of the expansion of lawful pathways and the rule was a way to restore order at the inundated border.

Judge Tigar dismissed the administration’s claims that, if the rule is blocked, there will be a return to higher encounters at the border, saying the rule “cannot remain in place, and vacating the challenged Rule would restore a regulatory regime that was in place for decades before.”

The lawsuit also faces a separate challenge from GOP-led states, which argued the rule is a “smoke screen” to “define the problem away by re-characterizing what would be illegal crossings as ‘lawful pathways.'”

Meanwhile, Secretary Mayorkas will testify Wednesday to Congress before the House Judiciary Committee.