The Biden administration’s efforts to manage the current border crisis suffered a major setback on Tuesday. Judge Jon Tigar of the U.S. District Court for the Northern District of California has halted the implementation of a new regulation that was announced in May. Those who did not follow the legal procedures set up by the federal government to enter the nation were deemed ineligible for asylum under this provision.
Left-leaning immigration groups had filed suit against the rule, claiming that it was too similar to a Trump administration transit ban that had previously been halted. The new regulation was found to be unconstitutional by Judge Tigar on both substantive and procedural grounds. He gave the government 14 days to file an appeal against his decision before it went into effect.
The Biden administration’s plan to deal with the May 2014 termination of the Title 42 public health directive relied heavily on this regulation. Asylum was presumed to be ineligible for illegal immigrants who reached the U.S. without first applying for it in a country they had previously transited. The administration’s goal was to reduce the number of people migrating illegally while simultaneously increasing the number of people using the expanded legal avenues. One such controversial pathway is the CBP One app, which lets migrants schedule one of over 1,400 daily appointments at a port of entry to apply for legal entrance into the United States.
Unaccompanied minors were exempt from the rule’s presumption of ineligibility, and migrants might contest the presumption by showing extraordinary circumstances.
Blocking the rule was a setback for the Biden administration’s response to the post-Title 42 surge, which included working with NGOs and Mexico, opening processing centers in Central America, accepting more refugees, and instituting a special parole system for certain nationals.
Back in May, DHS Secretary Alejandro Mayorkas said that anyone who crosses the border illegally would be automatically denied asylum. He denied that the new rule was similar to Trump’s travel ban and emphasized that, unlike the old one, the assumption of eligibility could be refuted.
The American Civil Liberties Union (ACLU) and other left-leaning immigration advocacy groups condemned the rule as cruel and restrictive of asylum access for foreign nationals. They were relieved by the decision of the judge but encouraged the government to do more to live up to its billing as a beacon of freedom and hope.
Judge Tigar halted the regulation due to flaws in the Administrative Procedure Act’s notification requirements. The government had given people 30 days to prepare for the rule, but Tigar said it wasn’t enough because of how complicated it was.
Administration claims of a substantial drop in border encounters in June following May’s record highs were severely hampered by the verdict. The judge rejected the administration’s argument that halting the regulation would increase encounters.
The Biden administration will be appealing and trying to get the judge’s injunction put on hold. Meanwhile, DHS Secretary Mayorkas reiterated the repercussions for illegal entrance and urged migrants to take advantage of the administration’s increased legal avenues.