California federal judge blocks Biden’s ‘asylum ban’

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Federal California Judge Jon Tigar on Tuesday blocked a new Biden administration rule limiting which migrants can apply for asylum.

Referred to by some as a “transit ban,” the policy, which took effect May 11, automatically denied asylum to migrants who cross the border illegally or cross other countries illegally to get to the U.S.

Tigar’s ruling included a two-week stay, giving the Biden administration time to appeal the decision before it takes effect. The Biden administration said that the Department of Justice would appeal the decision quickly.

Illegal immigration at the southern border has increased to historic levels and overwhelmed border communities under President Joe Biden, with 2.76 million crossings in 2022. 

The now-blocked asylum policy went into effect after the end of Title 42, a public health order instituted by the Trump administration that barred entry to large numbers of migrants on the grounds of the COVID-19 health crisis.

Tigar, an Obama appointee to the U.S. District Court for the Northern District of California, said that Biden’s policy “is contrary to law” and “both substantively and procedurally invalid.”

Unless overruled or delayed further by the Ninth Circuit Court of Appeals, Tigar’s ruling will take effect after Aug 8.

Biden’s Secretary of Homeland Security Alejandro Mayorkas said in a Tuesday press release that “today’s ruling does not change anything immediately.”

“We strongly disagree with today’s ruling and are confident that the [asylum policy] Circumvention of Lawful Pathways rule is lawful,” Mayorkas said. “The Department of Justice has said it will quickly appeal this decision and seek a stay pending appeal.”

In the meantime, Mayorkas said the ruling “does not limit our ability to deliver consequences for unlawful entry.”

“Do not believe the lies of smugglers,” Mayorkas warned potential illegal migrants, “those who fail to use one of the many lawful pathways we have expanded will be presumed ineligible for asylum and, if they do not have a basis to remain, will be subject to prompt removal, a minimum five-year bar on admission, and potential criminal prosecution for unlawful reentry.” 

Bishop Edward Weisenburger of Tucson, Arizona, whose diocese covers large swathes of the southern border, told CNA on Friday that he supports Tigar’s ruling, along with the other U.S. bishops. 

“I join my brother bishops in expressing appreciation over the recent federal ruling, which seeks to block the Biden Administration’s restrictions on asylum access,” Weisenburger said, adding that “the ability to seek asylum in the United States is woven into our national identity.” 

Though he expressed gratitude for the ruling, Weisenburger said he remains cautious that the final outcome is still uncertain. 

“We know the administration has already appealed this decision, and it will still be quite some time before we have a final resolution in the case,” he said. “It is currently uncertain whether the lower court’s order halting implementation of the administration’s asylum restrictions will take effect in the coming weeks.” 

According to Weisenburger, the Tucson and Yuma sectors of the border in Arizona currently account for “at least one-third of migrant entries across the US southern border.” 

“Whatever the outcome of this litigation, our efforts will continue to focus on welcoming these newcomers by offering safety, hope, and dignity, in accordance with our faith and applicable laws,” Weisenburger said, adding that his diocese “will continue to partner with our government and local community to provide these very necessary services."

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Other Catholic leaders at the border such as Dylan Corbett, executive director of the Catholic migrant aid group “Hope Border Institute,” also applauded Tigar’s ruling.

“The court made the right decision here,” Corbett told CNA, adding that “there is no legal basis for the Biden administration’s asylum ban.”

As a Catholic deeply involved with giving humanitarian aid and shelter to needy migrants, Corbett has long been a critic of attempts to shut down the border. Instead, he has advocated for substantive immigration reform.

He strongly condemned the Biden administration’s crackdown when it was first announced in February.

“There is no doubt a political dimension to this,” Corbett told CNA in February. “The new policy enables them to burnish their ‘tough at the border’ credentials as we approach the presidential elections.”

“We spend billions of dollars every year on border and immigration enforcement,” Corbett said. “There is no doubt that we can reinvest some of those resources into putting in place a safe, efficient, welcoming system at the border that upholds the rights of vulnerable migrants and keeps our country safe.”

“Effective management of the border doesn’t need to come at the cost of the rights and dignity of asylum seekers and vulnerable migrants,” Corbett told CNA Thursday.

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Corbett said that Biden’s current asylum policy “needlessly puts asylum seekers in danger and it outsources the challenges of immigration to countries less equipped to address them.”

“Rather than continuing to defend this indefensible policy in the courts,” Corbett said that the Biden administration “should pivot now by taking strong action to fully restore asylum at the border and make the moral argument to the country and Congress that we need immigration reform.”

Representatives from the Diocese of El Paso told CNA that Bishop Mark Seitz, the U.S. bishops’ migration head, was en route to World Youth Day in Lisbon, Portugal, and was not able to be reached for comment at the time of publication.

This article was updated on July 28, 2023.

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