Federal Judge: Biden Asylum Restrictions Violate Administrative Procedure Act

To great fanfare, immigrant advocacy groups successfully sued to stop many anti-immigrant policies of the Trump administration. One of the high-profile policies blocked by the courts was a Trump rule barring asylum for those who enter unlawfully or who transit through another country, ruled unlawful by Judge Jon Tigar of the Northern District of California in 2019.

On July 25, also in the court of Judge Tigar, a similar anti-asylum rule of the Biden administration, DHS and DOJ’s “Circumvention of Lawful Pathways” rule, suffered the same fate as the Trump rule. The court granted the plaintiffs’ motion for summary judgment and vacated the rule, finding it both contrary to law and arbitrary and capricious under the Administrative Procedure Act.

Unlawful aspects of the rule, according to the court, included:

• that it presumes noncitizens to be ineligible for asylum if they enter between ports of entry despite statute indicating that such entry should not affect eligibility;
• that it presumes noncitizens to be ineligible for asylum if they did not apply in a country they passed through, regardless of whether that country would have been a safe option;
• that it relied on the availability of other non-asylum-related pathways for migration to the United States, despite Congress not intending for agencies to consider such pathways to add further conditions for asylum eligibility; and
• that it explained the scope of each exception to the rule by reference to the availability of other exceptions where the record before the court showed each exception would be unavailable to many noncitizens subject to the rule.

The court’s order is not yet effective as the court stayed the order for 14 days. The Biden administration is expected to appeal and to seek to further stay the effective date of the order.

For further reading and to review Judge Tigar’s order, click here.