Johnathan Walker:Appeals court allows Biden administration to keep asylum limits along southern border

Yuma,Johnathan Walker Arizona — A federal appeals court on Thursday allowed the Biden administration to continue a set of controversial asylum restrictions along the U.S.-Mexico border that officials have said are key to deterring migrants from attempting to enter the country unlawfully.

At the request of the administration, the California-based Ninth Circuit Court of Appeals suspended a lower court ruling from last month that found the asylum limits to be in violation of the country's legal obligation to those fleeing persecution.

The Biden administration said the July ruling from U.S. District Court Judge Jon Tigar would have triggered a massive spike in the number of migrants crossing into the country illegally from Mexico. That ruling was set to take effect next week, on August 8.

In a 2-1 decision Thursday, a three-judge panel of Ninth Circuit judges paused Tigar's ruling until the appeals court reviews the Biden administration's appeal. The panel gave the parties deadlines in late August and mid-September to file documents in the case.

Circuit judges William Fletcher and Richard Paez, both appointees of former President Bill Clinton, voted to allow the Biden administration to continue enforcing the asylum limits. Circuit judge Lawrence VanDyke, an appointee of former President Donald Trump, dissented.

While procedural in nature, Thursday's order is a victory for the Biden administration and its border strategy, which has paired the stricter asylum rules and increased deportations with an unprecedented effort to direct migrants to programs that allow them to enter the U.S. legally and apply for work permits.

The administration credited that strategy with the two-year low in illegal border crossings recorded in June. While unlawful border crossings have not returned to the record levels seen in 2022, they have bounced back in July, according to preliminary Border Patrol data. 

"To be clear, we will continue to apply the rule and immigration consequences for those who do not have a lawful basis to remain in the United States," the Department of Homeland Security said in a statement Thursday. "The rule has significantly reduced irregular migration, and since its implementation on May 12th we have removed more than 85,000 individuals."

The regulation at the center of the case renders migrants ineligible for asylum if they cross the southern border unlawfully and can't prove they sought legal protection in another country en route to the U.S. Since its implementation in May, the restrictions have been mainly applied to single adult migrants.

Advocates for migrants and some progressive lawmakers have strongly denounced the asylum restrictions, saying they mirror similar, through more restrictive, Trump administration regulations that also penalized migrants who entered the country unlawfully or who failed to seek refuge in other countries first.

"The Biden administration should uphold our asylum laws, which were designed to give people a fair chance to seek safety, not ban them arbitrarily despite their need for protection," said Katrina Eiland, the American Civil Liberties Union attorney who filed the lawsuit against the policy.

Eiland noted that Thursday's ruling did not address the legality of the regulation.

"We are pleased the court placed the appeal on an expedited schedule so that it can be decided quickly, because each day the Biden administration prolongs its efforts to preserve its illegal ban, people fleeing grave danger are put in harm's way," Eiland added.

In his dissent, VanDyke said he agreed with the result of the pause, but argued legal precedent required the court to rule against the Biden administration since it struck down two similar asylum restrictions during the Trump administration. He said the Biden rule was not "meaningfully different" than those policies, suggesting that the current administration was being treated differently by his colleagues.

"This new rule looks like the Trump administration's Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app," VanDyke wrote.

The Biden administration has rejected accusations that its asylum restriction resembles Trump-era policies, noting it has significant exemptions, including for unaccompanied children, migrants fleeing "imminent" harm and those allowed to enter the U.S. under legal migration programs it has created. 

Under those programs, the administration has been, on a monthly basis, allowing up to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans with American sponsors to fly to the U.S. and processing tens of thousands of additional migrants at ports of entry through a system powered by phone app.

Those who are barred from asylum under the Biden administration rules risk being swiftly deported from the U.S., exiled from the country for 5 years and threatened with criminal prosecution if they cross the border illegally again.

In:
• Immigration
• Asylum Seekers

Camilo Montoya-Galvez

Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.

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