Biden's Asylum Ban is Unlawful Says Federal Judge
A federal judge said on Tuesday that the Biden administration's Circumvention of Legal Pathways rule undermines Congress's crystal clear intent to allow migrants to access asylum. Here's why.
Another one bites the dust. Asylum bans, that is. For several years now, both Republican and Democratic administrations have attempted to restrict access to asylum. The latest attempt was called the Circumvention of Lawful Pathways rule, now two months old, which limited access to asylum based on countries that migrants passed through and how migrants entered the United States.
A federal judge ruled yesterday that the Biden administration’s Circumvention of Lawful Pathways (CLP) is unlawful because it undermines Congress’s clear intent to allow migrants on U.S. soil to access asylum. Judge Tigar’s ruling gives the Biden administration 14 days to “restore a regulatory regime that was in place for decades.” The DOJ has already appealed the ruling.
Edit 08/04/2023: An appeals court has allowed the Biden administration’s asylum policy to continue until the matter is sorted out in court. See NYT article here.
With the high-level details out of the way, I want to dig into several crucial parts of this decision that might not make it into regular reporting and use this case as a jumping off point to discuss crucial yet often misunderstood aspects of the asylum system. I started off trying to write this in one long post. It was too long. So stick with me over the next few posts as we get into some interesting details here, and if you’re not subscribed, please consider subscribing so that you can stay with us for the whole conversation. As always, comments, questions, and corrections are all welcome in the comments.
Let’s begin with the most important—and most basic—legal point in Judge Tigar’s decision: whether the executive can introduce more stringent restrictions to asylum than Congress allowed. On the one hand, federal agencies are afforded a degree of deference to how they enforce the law because, well, how else could they operate. On the other hand, it would contravene a fundamental principle of law if agencies could arbitrarily fabricate additional barriers to asylum that Congress did not intend.
So let’s look at what the law says and then look at what the Biden administration was trying to do.
It all starts with the Refugee Act. Here’s the original Refugee Act passed in 1980, which clearly states that “an alien physically present in the United States” can apply for asylum.
Next we can look at 8 USC §1158(A)(1) which more or less restates the Refugee Act, and emphasizes the fact that this includes any aliens who are present “whether or not” they arrived at ports of entry. The text couldn’t be clearer.
“Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”
Note that Congress did provide exculsionary factors that enable the government to restrict access to asylum, such as if migrants have certain criminal histories, if migrants are a danger to national security, or if migrants have firmly resettled elsewhere. DHS already has the authority to restrict access to asylum, just not in any way it wishes.
Now let’s look at the Circumvention of Lawful Pathways (CLP). The CLP does a lot of things and I don’t want to get into all of the details right now. Let’s just focus on the most controversial part: the explicit restriction on asylum that runs afoul of the law.
The CLP basically creates what DHS would probably want us to call “strongly preferred” pathways for asylum seekers, but if we’re honest, they are really new “mandatory pathways”. If you are in a mandatory pathway, you may well have a much more positive experierence of the asylum process than prior to the implimentation of the CLP, with the possibility of getting work authorization, avoiding prolonged detention, and possibly receiving some limited support while pursuing asylum that were not in place previously. All well and good.
But if you are not in a preferred pathway, the restrictions are far harsher than before. Migrants who cross the border outside of a preferred pathway—basically outside of using CBP One—your experience will be worse. The CLP limits access to asylum for many migrants who come through Mexico and don’t request asylum there, and also introduces an extremely high hurdle to jump through for those migrants who cross the border between ports of entry to request asylum.
DHS is right that the policy does not represent a total ban on asylum. For instance, the policy also creates its own exemptions for extreme cases and doesn’t apply to children. Okay, fine. But this is hardly sufficient to change the overwhelming thrust of the policy to massively restrict access to asylum.
Perhaps most interesting to me less from a legal perspective and more from an ethical perspective is that the government argued in court that its generous use of parole, exemptions, and other tools to benefit asylum seekers that are legally and legitimately within its authority should offset these other negative factors.
To use an analogy, its as if DHS is claiming that although Congress set the speed limit at 65 miles per hour, DHS should be allowed to enforce a 55 mile-per-hour speed limit if it lets people who are going to the hospital off the hook without a speeding ticket. That’s really nice, sure, but it’s not what the law says. (Spoiler alert: the judge didn’t buy it.)
To boil it down to its essentials, the CLP creates its own asylum system that reflects how the Biden administration wants asylum to work, and it manifests its own regime of carrots and sticks to impliment this vision.
Here’s how the rule puts it:
I want to be clear: from my perspective, it’s not all bad. And I’m not entirely unsympathetic to the fact that its no small political, legal, and logistical problem as to how, precisely, to responsibly manage the asylum process given the volume of new applicants. I just want to demonstate the logic that Judge Tigar used (and which I agree with ) to reach his conclusion that this policy is unlawful.
The logic is not particularly complicated. If you, dear reader, put the text of the Refugee Act and of the INA above alongside the text of the CLP below, any competent person can see the clear contradiction between the two texts. Congress said migrants can apply for asylum if they are on U.S. soil; the CLP adds layers of exclusion to that.
And this is precisely what Judge Tigar said in his ruling. Here’s the crucial paragraph (page 19 of the ruling):
“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.”
I don’t think the judge could be clearer than this. As I mentioned, the government has already appealed Judge Tigar’s ruling, so this probably won’t be the last we’ve seen of this case.
Those are the key discussion points about the case I wanted to focus on today. But there’s more to dive into! Next I want to talk about a few lesser—but still significant—points in the ruling, including some of Judge Tigar’s confusing logic about asylum data in Latin America, the short but important discussion of CBP One, and the broader implications of this policy and this ruling for the troubled future of asylum.
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Good news for asylum-seekers! (Fingers crossed.)