Federal District Judge Jon S. Tigar issued a ruling Tuesday to vacate the Biden administration’s May 2023 asylum regulation titled Circumventing Lawful Pathways, 88 Fed. Reg. 31314, (May 16, 2023). This rule restricts asylum eligibility from aliens who enter the United States illegally without either taking advantage of one of the Biden administration’s new “lawful” pathways for entry or without first applying for asylum in a third country in which they transited through en route to the United States. The rule was created a part of the Biden administration’s strategy to address the end of its use of the Title 42 public health order, which allowed DHS to quickly expel inadmissible migrants who illegally crossed the border rather than put them into costly immigration proceedings. The problem with the rule, however, is not its lawfulness, but its design.
Judge Tigar, writing for the U.S. District Court in the Northern District of California, held that the Biden rule was substantively invalid under the Administrative Procedure Act (APA) because, in his view, the policy impermissibly conditioned asylum eligibility on an alien’s manner of entry into the United States. Judge Tigar wrote, “To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility. The Rule is therefore arbitrary and capricious.”
Judge Tigar also ruled that the rule was procedurally invalid because government failed to give the public adequate notice of the rule. Prior to issuing a rule, the APA generally requires agencies to publish notice of the proposed rulemaking in the Federal Register and must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” Judge Tigar held that the Biden administration failed to comply with its duty, writing that a 30-day comment period was unreasonably short given the complexity of the issue.
Importantly, Judge Tigar also factored in the government’s failure to disclose the data models it based its decision on to issue the rule, noting that as a result “the public had no means by which to challenge that justification.” To justify the rule, the government projected that CBP officers would encounter 10,000-13,000 inadmissible aliens attempting to cross the border without authorization per day after the Title 42 public health order was lifted. In making this claim, the government did not make public the relevant data that goes into the projections, the factors that impact the model, or the complete analysis on which the rule depends, thus depriving the public of an opportunity to review or challenge the facts.
July 25’s ruling is a continuation of litigation that began in November 2018 as a challenge to similar (albeit stronger) asylum restrictions imposed by the Trump administration. At that time, plaintiffs filed suit to challenge an interim final rule, Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018), and accompanying presidential proclamation which together barred asylum eligibility for aliens who entered the United States outside designated ports of entry. The same court enjoined this policy and the Ninth Circuit subsequently ruled that the policy was substantively invalid.
In 2019, the Trump administration issued an interim final rule (IFR), which bore even closer resemblance to the Biden administration’s policy at issue today. The 2019 IFR was titled Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33829 (July 16, 2019), and restricted asylum eligibility from illegal border crossers who had either not applied for and been denied asylum or other protection in at least one country en route to the United States (if any one such country was a party to one of the three international treaties) or not qualified as victims of human trafficking. This rule was also enjoined by this district court and ultimately invalidated by the Ninth Circuit on appeal. The Trump administration provided similar rationale for the need to implement this policy as the Biden administration did in 2023: to alleviate the mass illegal immigration crisis along the Southern border by discouraging the submission of fraudulent or otherwise meritless asylum claims.
Given the similarities of the policies, this week’s ruling should not be surprising. At a hearing last week, Judge Tigar reportedly joked that he heard that, “2023 was going to be a big year for sequels.”
Both Biden and Trump’s Transit Restrictions Are Consistent with Domestic Law and International Obligations
While the Center submitted a public comment on the rule in March 2023 criticizing the extensive flaws to the Biden administration’s drafting and strategy, the Center strongly agrees with the government that it has the authority to issue this type of asylum restriction by regulation. Congress delegated broad authority to the executive to establish limits or conditions on asylum with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Here, Congress expressly provided the Attorney General the authority to create, by regulation, “any other conditions or limitations on the consideration of an application for asylum,” so long as those limitations are “not inconsistent with this chapter.”
In section 208 of the INA, Congress created a distinction between eligibility to apply for asylum, which is governed by section 208(a) (titled “Authority to apply for asylum”) and eligibility to receive a grant of asylum, which is governed by section 208(b) (titled “Conditions for granting asylum”). Accordingly, the government may lawfully restrict asylum eligibility from aliens who are authorized to apply for the discretionary benefit.
Importantly, the Biden administration’s asylum rule is also consistent with section 208(a)(1) of the INA, which authorizes an 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…, irrespective of such alien’s status” to apply for asylum. Neither the policy created under this rule nor the third-country transit bar issued in 2019-2020 apply to aliens solely on the basis of their immigration status or unlawful entry into the United States. In the case of the current rule and 2019-2020 bar, any alien who demonstrates that they meet one of the regulation‘s exceptions may circumvent the presumption against eligibility or bar to asylum eligibility, regardless of their manner of entry.
Both Biden and Trump’s rules are also consistent with the INA’s safe-third country and firm-resettlement bars to asylum eligibility. The safe-third country bar generally restricts asylum eligibility for aliens that “may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” The firm-resettlement bar, on the other hand, restricts asylum eligibility for aliens who are determined to be “firmly resettled in another country prior to arriving in the United States.”
The rules at issue, however, are distinct from the safe-third country and firm-resettlement bars. While both the safe-third country and firm-resettlement bars seek to limit forum-shopping in the asylum context, neither the presumption against eligibility nor the bar to asylum eligibility entirely eliminates asylum eligibility based on an alien's presence or stay in another country. Under both third-country transit frameworks, aliens remain eligible for asylum so long as they applied for and were denied protection in the relevant third country or fall under another exception.
A third-country transit restriction is also consistent with the United States’ non-refoulement obligations. Article 33 of the 1951 Refugee Convention is implemented by section 241(b)(3) of the INA. This section governs mandatory withholding of removal (also known as statutory withholding of removal). These rules are likewise consistent with the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which authorized DHS and DOJ regulations to implement the Convention Against Torture (CAT). These rules do nothing to alter eligibility for protection under the CAT regulations.
Moreover, these types of asylum restrictions are not unique to U.S. immigration policy. As the government explained in 2019, a third-country transit bar “is in keeping with the efforts of other liberal democracies to prevent forum-shopping by directing asylum-seekers to present their claims in the first safe country in which they arrive. ... [T]he [European Union’s] Dublin III Regulation ... instructs that asylum claims ‘shall be examined by a single Member State.’ ... Typically ... the member state by which the asylum applicant first entered the EU ‘shall be responsible for examining the application for international protection.’ ... [and other member states] may transfer the asylum-seeker back to the state of first safe entry.” The principles underlying these asylum restrictions have historically been recognized and implemented by fellow signatory countries.
The real problem with the Biden administration’s asylum restriction, however, is not that it lacks legal authority, but the manner in which it was designed and the purpose it apparently serves. As I discussed in February, the rule is packed full of exceptions and loopholes that are easy to exploit. Even more concerning, the rule is a part of the Biden administration’s larger strategy to launder the numbers on the illegal immigration crisis by paroling aliens into the United States, whether it be by an “prescheduled” appointment using the CBP One app, or through an issuance of parole via one of the Biden administration’s mass parole programs. In these situations, as the Center’s executive director, Mark Krikorian, has said, it is the government committing the illegal act for the migrant.
An inadmissible alien who enters with an appointment is still an inadmissible alien. An (unlawful) grant of parole does not cure the border crisis, it only changes how the government is required to report the information to the public. While the Center agrees that the government has the authority to issue such asylum restrictions, the Biden administration’s rule does little to deter mass asylum fraud. (An alien can still submit an asylum claim affirmatively after they are temporarily paroled in to the country.)
When combined with it the administration’s overall mass-parole strategy, it seems that its only purpose is to deceive. The Center believes that this rule is solely aimed at facilitating “orderly”, but unlawful, entries of inadmissible aliens and creating cover so the Biden administration can claim to the American public, which largely opposes the Biden administration’s non-enforcement policies, that the government is implementing some form of deterrence policy.