Federal judge says Biden administration’s new immigration policy is ‘invalid’

As I explained here, the Biden administration recently adopted a new immigration policy which limited asylum claims from people who cross the border illegally and who can’t show they filed for asylum in any other countries along the route to the US border. That policy that far fewer migrants were able to gain entry to the Untied States by claiming asylum after crossing the border illegally.

The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.

This was a much needed change after the expiration of Title 42 and gave the border patrol some ability to send people home rather than simply welcome then in for the seven year process of seeing an immigration judge, a process that all but ensures they’ll be allowed to stay in the US regardless of what the immigration court ultimately decides.

Today a federal judge in northern California ruled that the Biden administration’s immigration policy is invalid, though he gave the administration two weeks to appeal.

The Biden administration was dealt a major blow in its efforts to control the ongoing border crisis on Tuesday when a federal judge blocked a rule introduced in May that makes migrants ineligible for asylum if they have entered illegally and failed to take advantage of expanded lawful pathways set up by the federal government.

Judge Jon Tigar of the U.S. District Court for the Northern District of California blocked the Circumvention of Lawful Pathways rule in response to a lawsuit from a coalition of left-wing immigration groups, which claimed the rule was similar to a Trump-era transit ban that was similarly blocked. He found the rule is “both substantively and procedurally invalid” and has delayed his ruling from taking effect for 14 days to give the administration time to appeal…

The rule had angered left-wing immigration activist groups, which said it was cruel and limited the ability of foreign nationals to claim asylum in the U.S. The American Civil Liberties Union (ACLU), which led the groups in the lawsuit, hailed the ruling on Tuesday.

“The 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,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, in a statement. “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.”

The ACLU wants the border to be effectively wide open regardless of the level of chaos that creates for the border patrol and the border states who are mostly left trying to deal with this. So what happens next? The administration will appeal and it’s likely the stay will continue until the appeals court reaches a decision. Then, if they affirm the lower court, it could be appealed to SCOTUS.

I’m not getting my hopes up that either court will reverse this decision for two reasons. First, because this will now go to the Ninth Circuit and second because it’s entirely possible that the judge is simply right on the law. Our asylum system has been broken for years at this point. Biden’s ability to change that on the fly is probably no greater than his ability to eliminate student debt because he feels like it.

By law, foreigners who reach U.S. soil are entitled to request asylum, regardless of how they entered the country…

“The court concludes that the rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum,” the judge wrote.

The fact remains that the border is under siege and we need some way to control that chaos. Biden’s plan was to block a large number of asylum seekers with this new rule and simultaneously open the floodgates to tens of thousands of migrants per month who wait in line using an app. As I pointed out here, this didn’t really change the number of people coming to the border by much but it did reduce the level of chaos substantially. It worked because it created a powerful incentive for order. Cross the border without an appointment and you were probably going home. Stay in line and you had a good shot at getting in.

Now it looks like we might be headed right back to chaos.

Remember, just before the end of Title 42 we were seeing more than 10,000 migrants a day cross the border. That’s just not sustainable. And thanks to the busing done by Gov. Abbott, you can bet that New York, Chicago and LA are worried about what will happen next. That’s a good thing because it means the whole country has a stake in this.

In addition to being a potentially huge problem for the country it’s also a big problem for presidential candidate Joe Biden. The ACLU may be celebrating now but they probably just put an anchor around Biden’s neck for 2024.

A migrant surge could open up President Biden to attacks from Republicans, as campaigning gets underway for the presidential election next year. This policy, in particular, does not diverge greatly from the one introduced by President Donald J. Trump, according to legal experts.

The strategy of returning to the same judge who found the Trump administration’s rule unlawful paid off for immigrant advocates, said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, a nonpartisan research group.

At some point what we need is for congress to fix the broken asylum system so that every migrant willing to lie to the border patrol isn’t eligible for a lengthy stay, but neither side wants to do take on immigration with a divided congress because neither side is willing to compromise.