Judge Nixes Biden Rule Barring Some Illegal Aliens from Seeking Asylum, While Abuse of Parole Remains Unchecked

The last thing in the world the Biden administration wants is to halt the record influx of illegal immigration to the United States. What they really want – especially as President Biden campaigns for reelection next year – is to make mass illegal immigration less visible to the American public (although that would be a hard sell to anyone walking the streets of Manhattan lately). 

To that end, as the administration prepared to terminate Title 42 – a public health provision that allowed for the prompt expulsion of at least some illegal border-crossers – they took several steps. First, they ratcheted up the abuse of the Executive Branch’s very limited authority to parole inadmissible foreign nationals into the United States. Second, they ramped up the use of the CBP One phone app, which allows migrants seeking to defraud our asylum system to make an appointment at a legal port of entry, rather than cross the border between ports of entry. In nearly all cases, CPB One app users are allowed to enter the country, even though only a small fraction have valid asylum claims. Third, on the eve of Title 42’s end in May, the administration issued a rule that bars some migrants from making asylum claims. These include migrants who had transited from safe third countries and were subsequently caught entering between ports of entry. 

These moves allowed the administration to claim (falsely) that their policies were making dramatic progress in securing the border. Administration officials crowed that Border Patrol encounters of illegal migrants along the Southwest border decreased significantly. In reality, as FAIR pointed out repeatedly, the strategy was designed to reroute as many illegal aliens as possible through airports, land border ports of entry, and even via Canada. Many compliant news organizations dutifully parroted the administration’s assertion that their policies were succeeding in reducing illegal immigration, even though the total number of illegal aliens entering remained more or less constant. 

Predictably, the lavishly-funded mass immigration lobby took exception to the administration’s loophole-ridden rule that denied some categories of illegal border-crossers to enter asylum claims, and filed a lawsuit to block its implementation. Magically, their case wound up in the courtroom of Federal Judge Jon Tigar, an activist judge with a history of ruling against policies intended to enforce immigration laws. They were not disappointed. On July 25, Judge Tigar sided with the plaintiffs. 

The activist groups suing to block Biden’s asylum rule argued that it violated the law by restricting the right of illegal border-crossers to apply for asylum. U.S. law allows any foreigner present in the U.S. to apply, no matter how they arrived, unless a bilateral safe third country agreement is in place and the foreigner passed through that country. However, the Biden administration scrapped the previous administration’s Asylum Cooperative Agreements with several Central American countries through which most illegal crossers travel. In doing so, the administration ended its own best possible legal defense for the policy. The Biden administration’s argument for the rule was, incredibly, that the administration is letting in so many illegal aliens and other foreigners through “lawful pathways” that the asylum rule is justified as a means of control. This incoherent legal defense went over poorly in a court already notable for opposing immigration restrictions of any kind, and Judge Tigar vacated the asylum rule. 

The ruling rejects the softest limits on access to the American asylum system, implying that no other country along illegal migration routes could possibly be safe for asylum seekers. For example, the ruling insults U.S. allies like Colombia, calling that country unviable as a safe third country because of a “26,000- case backlog of asylum cases.” Naturally, no mention is given to the fact that U.S. immigration courts have a backlog of nearly 2.4 million cases, more than half of those were added since President Biden took office. That backlog allows anyone who applies for asylum in the U.S. to wait years (with work permits) while their case is processed, and for many in the open-borders lobby, that is the end goal. 

A three-judge panel of the Ninth Circuit Court of Appeals (by a 2-1 majority) paused Judge Tigar’s order vacating the administration asylum. As of the completion of this edition of the FAIR newsletter, consideration of the administration’s appeal of Judge Tigar’s ruling had not occurred. What is clear, however, is regardless of whether the rule is allowed to remain in place, the administration will use any means at its disposal to encourage asylum abusers to enter the country through other means.