US judge blocks Biden’s ‘asylum ban’ at Mexico border

A United States judge has ruled that a key tenet of President Joe Biden’s border policy is in violation of the country’s asylum law, in a decision hailed by rights groups as a “victory”.

In a ruling on Tuesday, US District Judge Jon Tigar blocked a restriction put in place by the Biden administration in May that effectively bars most asylum seekers from being able to apply for protection at the US border with Mexico.

However, the ruling will have little immediate effect at the border because Tigar stayed his decision for two weeks to give the administration time to appeal to a higher court.

The Biden administration within hours appealed to the US 9th Circuit Court of Appeals, the Reuters news agency reported.

“The ruling is a victory,” said Katrina Eiland, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, who argued the case brought by a number of human rights groups.

But she noted that the success was limited. “Each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” Eiland said in a statement ahead of the administration’s appeal.

The Biden administration has touted its policy as being responsible for a steep drop in irregular crossings at the US-Mexico border in recent months. Fewer than 100,000 people were detained at the border in June, the lowest total since February 2021.

The measure blocks most migrants and asylum seekers from being able to apply for protection at the border if they first did not seek asylum in a third country they crossed earlier in their journeys, or did not use so-called “legal pathways” to get to the US.

The policy was unveiled as a replacement for Title 42, a controversial COVID-era rule that allowed US authorities to turn away most asylum seekers at the border in the interest of protecting public health, without giving them the chance to seek safety.

But critics have dubbed the Biden administration’s policy an “asylum ban”, saying it violates the US’s obligations under international law and puts people at risk by forcing them to seek protection in unsafe third countries that do not have robust asylum systems.

In Tuesday’s decision, Tigar wrote that entering the US between ports of entry “should not affect access to asylum”.

The judge also noted that requiring an individual to seek safety in a third country violated legal precedent, and that asylum pathways created by the Biden administration were “not meaningfully available” to many people seeking protection.

Tigar had previously struck down similar, albeit more restrictive, policies that former President Donald Trump’s administration had put in place.

They included a measure that sought to bar those who crossed the US border irregularly from accessing asylum, and another that barred people from seeking asylum in the US if they had travelled through a third country.

The Biden administration had argued that its asylum policy was distinct from what was imposed under Trump, however, because it was imposed alongside new “lawful immigration pathways”.

But according to Keren Zwick, director of litigation at the National Immigrant Justice Center, the Biden administration “simply rehashed prior rules that restricted access to asylum based on similar grounds, which courts already rejected”.

“US laws protect the rights of people fleeing persecution to come to this country and pursue asylum, full stop,” Zwick said in a statement on Tuesday.

“We encourage the Biden administration to now direct its resources to upholding that right, rather than fighting to continue this unlawful and inhumane asylum ban.”

In a statement on Tuesday afternoon, the US Secretary of Homeland Security, Alejandro Mayorkas, said the administration “strongly” disagreed with the court’s ruling and was “confident” that its policy would be found to be lawful.

“To be clear, because the district court temporarily stayed its decision, today’s ruling does not change anything immediately. It does not limit our ability to deliver consequences for unlawful entry,” Mayorkas said.

“Do not believe the lies of smugglers. Those who fail to use one of the many lawful pathways we have expanded will be presumed ineligible for asylum and, if they do not have a basis to remain, will be subject to prompt removal, a minimum five-year bar on admission, and potential criminal prosecution for unlawful reentry.”