Federal Judge Vacates Biden’s Asylum Rule; Americans Get the Worst of Both Worlds
FAIR Take | August 2023
On July 25th, Federal Judge Jon Tigar rejected the legality of the Biden administration’s new asylum rule, which was the centerpiece of its “enforcement measures.” The administration claimed the rule reduced asylum abuse by supposedly requiring migrants to seek, and be denied, asylum in any safe third country they travel through before being allowed to claim asylum in the U.S. In reality, however, the rule was so riddled with exceptions that it just redirected asylum seekers to make appointments through the CBP One app and then enter through a port of entry at our southern border.
Issuance of the rule was the result of the Biden administration’s attempt to have it both ways when it comes to immigration. By running a massive shell game with statistics, the administration is falsely claiming its policies are mitigating illegal immigration. Meanwhile, the administration has actively invited hundreds of thousands of illegal aliens to the U.S. and handed them work permits through lax enforcement policies that direct border agents to release virtually everyone into the U.S. The administration claims that its “tough” border policies are keeping illegal crossers away while it’s really focused on letting in millions of people through “pathways” it falsely claims are legal immigration.
However, even these unprecedented policies that have let in millions of illegal aliens are not enough to appease the open-borders lobby. As soon as the Biden administration issued the final version of its asylum rule in May, activist groups sued to stop it. Biden’s asylum rule was essentially borrowed from the previous administration’s policy, though it contains many more loopholes and is intended to redirect rather than deter illegal aliens. Unsurprisingly, open-borders activists made sure to take their case to the same judge who struck down the Trump-era rule.
The activist groups suing to block Biden’s asylum rule argued that it violated the law by restricting the right of illegal 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.
Judge Tigar’s ruling shows just how radical indeed the open-borders position has become. 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 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 seems to be the end goal.
The Biden administration’s asylum rule and “enforcement measures” (selectively enforcing existing laws it previously ignored) have not been successful in stemming the tide of our border crisis. However, these measures did allow the administration to claim that its moves to increase visas and refugee admissions and to implement “parole programs” were justified as part of a carrot-and-stick approach. Now that Judge Tigar has called the administration’s bluff and removed the stick, America will be left with a limitless asylum system and even longer backlogs. Unfortunately, nothing about the Biden administration’s reckless and illegal parole programs or catch-and-release practices seems likely to change.
If the administration really wanted a rule like this to succeed, it would not have terminated the safe third-country agreements that gave the rule legal justification. The Biden administration has consistently treated the most basic of border enforcement like something it needs to compensate for rather than its obligation, after all. Judge Tigar’s all-carrot, no-stick ruling might actually be just what the Biden administration had been hoping for.