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Judge Blocks Biden's New Restrictions on Asylum at the Border

U.S. Mexico border fence
By Natasha Bakirci, LLB, LLM on July 31, 2023

On July 25, 2023, U.S. District Judge Jon Tigar blocked President Joe Biden's new regulation restricting asylum access at the U.S.-Mexico border. This followed a legal challenge by the American Civil Liberties Union (ACLU) and other groups.

The San Francisco, California-based federal judge stayed the order for 14 days, allowing the Biden administration to appeal.

Out With Title 42, In With Biden's Rule

In March 2020, the Centers for Disease Control and Prevention (CDC), under President Trump, issued a public health order allowing border agents to quickly expel border crossers and asylum seekers. The order, known as "Title 42," was based on 42 U.S.C. § 265, a U.S. statute which allows the government to suspend entry into the country to prevent the spread of communicable diseases. Biden's new asylum regulation took effect when Title 42 ended on May 11, 2023.

The new rule requires asylum-seekers to schedule an appointment for an asylum hearing at a legal port of entry or prove that they have already sought and been denied asylum in another country while en route to the States. The Biden Administration asserts that the asylum rule is a key part of its strategy to strike a balance between strict border enforcement and ensuring several avenues for migrants to pursue valid asylum claims. The rule is a response to political and economic instability fueling an exodus of migrants from countries including Brazil, Colombia, Cuba, Ecuador, Haiti, Nicaragua, Peru and Venezuela.

Practical Consequences of the New Rule

In practice, the rule will disqualify most non-Mexican migrants from asylum. Those found ineligible for asylum under the rule could face swift deportation to their home country or to Mexico, as well as a five-year ban from reentering the U.S. Those who attempt to reenter the country illegally could face criminal charges, the Biden Administration has warned.

However, the new regulations are less restrictive than the near-total asylum bans enacted under former president Donald Trump. The Biden administration's asylum restriction, for example, does not apply to: 

  • Unaccompanied children;
  • Migrants who secure an appointment to enter the U.S. through a mobile app for asylum-seekers in Mexico; or
  • Those sponsored by U.S.-based individuals under a program for Cubans, Haitians, Nicaraguans and Venezuelans.

The rule also includes limited exemptions for migrants facing an "imminent and extreme threat" in Mexico, those with "acute" medical emergencies, and victims of severe human trafficking.

Federal Judge Strikes Down the New Rule

In a 35-page ruling, U.S. District Court Judge Tigar found Biden's contested immigration policy both substantively and procedurally invalid. Judge Tigar had previously blocked similar Trump-era policies. 

The judge found that U.S. law explicitly states that crossing the border illegally should not be a bar to asylum. He further held that U.S. law only permits barring migrants from asylum if they pass through a country that "actually presents a safe option." He opined that finding refuge in a third country, such as Belize, Mexico or Colombia, is "infeasible" due to limited processing capacity and other factors in those countries.

"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," Judge Tigar wrote. "The Rule is therefore arbitrary and capricious."

Lawyers for the Justice Department immediately responded by issuing a notice to appeal the decision, and the case is likely to go all the way to the Supreme Court.


Katrina Eiland, deputy director of the ACLU's Immigrants' Rights Project and the lawyer who argued the case said, "[t]he ruling is a victory, but 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. The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it."

Alex Miller, director of the Immigration Justice Campaign, said, "[t]his rule is a stark reversal of the administration's stated commitment to restoring access to asylum. The right to seek asylum, no matter how you enter the U.S., has been a hallmark of U.S. asylum law and that right shouldn't be conditioned on whether you sought and were denied asylum on your way here." 

Michael Knowles, spokesperson for the AFGE National Citizenship and Immigration Services Council 119, said, "[t]he new rules fly in the face of well-established law and place refugees at risk of forcible return to countries where their lives or freedom may be threatened. The crisis at our Southern Border is really a crisis of our national conscience." 

This case will undoubtedly be followed with great interest by many across the country, and will be of great consequence to those forced to leave their homes in search of a safer and brighter future for themselves and their families.

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