A federal judge blocked the Biden administration’s attempt to impose stricter rules on asylum-seekers, blunting the stick in the government’s new carrot-and-stick approach to illegal immigration.
Judge Jon S. Tigar said he was aware that Tuesday’s ruling could reignite the record levels of illegal immigration seen at the border just a few months ago before the asylum policy was in place.
But he said the new policy was crafted too hastily and stretched beyond the parameters Congress set when it wrote the asylum laws.
The new policy was intended to cut down on illegal immigrants attempting to sneak into the U.S. and then file iffy asylum claims, knowing that it would take years for their cases to be heard, during which time they could put down roots and embed themselves in communities.
Under the Biden policy, migrants who had crossed other “safe” countries to reach the U.S. were presumed not to be authentic asylum-seekers and were pushed back across the border to claim asylum in one of the nations they traversed.
Immigrant rights activists had sued, arguing that the policy endangered the migrants’ lives.
Judge Tigar said the Biden administration failed to prove that the other countries the migrants were traversing were “safe.”
“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.
He also said the rule was illegal “because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”
The Biden administration said it would appeal and the judge stayed his ruling to allow time for a quick review.
Homeland Security Secretary Alejandro Mayorkas urged migrants not to rush the border in the meantime.
“We encourage migrants to ignore the lies of smugglers and use lawful, safe, and orderly pathways that have been expanded under the Biden administration,” he said.
Judge Tigar, who was appointed to the federal bench by former President Obama, had previously blocked a Trump policy that had the same goal of turning back bogus asylum-seekers.
The Biden administration had insisted its policy was different, but the judge didn’t buy that.
The asylum policy was part of the Biden administration’s new migration framework after May’s end of the pandemic-era Title 42 expulsion authority.
Expecting a surge of people, even beyond the previous record-shattering levels, the administration crafted new immigration avenues to welcome unauthorized migrants as long as they scheduled their arrivals ahead of time and entered through official border crossings or airports.
That was the carrot. The stick was the stiff new asylum policy.
The thought was to try to entice migrants to come through ports of entry, rather than be smuggled across the dangerous land border with Mexico.
It appeared to have worked.
The Border Patrol went from arresting 10,000 people a day just before the end of Title 42 to arresting between 3,000 and 4,000 a day in June.
Some of that flow has been shifted to official border crossings, but even accounting for that, the overall rate of unauthorized migrants being encountered is down compared to this spring.
The administration warned the judge that things could worsen without the asylum rule.
“DHS anticipates a return to elevated encounter levels that would place significant strain on DHS components, border communities, and interior cities,” the Justice Department said.
But the judge said that couldn’t justify his leaving the policy in place.
Immigration activists said the judge got it right.
“Restricting the bedrock human right to seek asylum is illegal under Republican and Democratic administrations alike,” said Krish O’Mara Vignarajah, president of Lutheran Immigration and Refugee Service. “Whether the barriers are bureaucratic or physically covered in razor-wire, turning our backs on desperate people in dire need is shameful.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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