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Federal Judge Blocks Biden’s Asylum Rule Put in Place After Lifting Title 42

Federal Judge Blocks Biden’s Asylum Rule Put in Place After Lifting Title 42

The DOJ filed an appeal, disagreeing with the decision: “We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws.”

Judge Jon Tigar of the U.S. District Court for the Northern District of California blocked President Joe Biden’s asylum rule the administration put in place after it lifted Title 42 in May.

The DOJ and DHS published the Circumvention of Lawful Pathways on May 16. The rule “applies a presumption of asylum ineligibility to noncitizens who traveled through a country other than their own before entering the United States through the southern border with Mexico.”

“Unless they meet one of several exceptions, such individuals will be presumed ineligible for asylum; they may rebut this presumption only upon a showing of ‘exceptionally compelling circumstances’ at the time of entry,” wrote Judge Tigar. “The Rule provides exceptions for unaccompanied children, noncitizens authorized to travel to the United States pursuant to a DHS approved parole process, certain noncitizens who present at a port of entry, and noncitizens who have been denied asylum or other forms of protection by another country.”

Organizations such as the East Bay Sanctuary Covenant sued the Biden administration.

They claimed that the rule was not valid under the Administrative Procedure Act.

The APA “governs the procedures of administrative law.” You can find it codified in 5 U.S.C. §§ 551–559. It has four purposes:

  • To ensure that agencies keep the public informed of their organization, procedures, and rules.
  • To provide for public participation in the rule-making process
  • To prescribe uniform standards for the conduct of formal rule making and adjudicatory proceedings.
  • To restate the law of judicial review.

The plaintiffs claimed the rule violated the APA: “first, it is contrary to law; second, it is arbitrary and capricious; and third, it was issued without adequate opportunity for public comment.”

Arbitrary and capricious is conduct that “is willful and unreasonable action without consideration or regard for the facts and circumstances.” In 2020, SCOTUS used arbitrary and capricious to overturn a DHS decision to eliminate the DACA program based

Judge Tigor agreed with the plaintiffs about the rule being arbitrary and capricious for two reasons:

First, it relies on the availability of other pathways for migration to the United States, which Congress did not intend the agencies to consider in promulgating additional conditions for asylum eligibility. Second, it explains the scope of each exception by reference to the availability of the other exceptions, although the record shows that each exception will be unavailable to many noncitizens subject to the Rule.

Judge Tigar also said that the Court concluded the rule is contrary to law, which means it violates or is against laws, regulations, or statutes we already have in place:

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 Rule is also contrary to law 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.

“Regulations imposing additional conditions on asylum must be consistent with the core principle of the safe-third-country and firm-resettlement bars,” wrote Tigar. “This Rule is not.”

Judge Tigar also agreed with the plaintiffs that the government didn’t provide enough time for public comments. The DHS and DOJ gave 33 days for public comment. The minimum is 30 days.

Despite the days being over the minimum amount given, Tigar thinks it should have been longer since the rule is complex:

The Rule is unquestionably complex—it establishes a presumption of asylum ineligibility for noncitizens who enter at the southern border that is subject to various exceptions ,one of which contains its own exception, and is rebuttable only in certain circumstances. That presumption of ineligibility applies across all contexts in which such individuals might be screened for asylum or other protection. The complexity of the Rule suggests that 30 days is unreasonable, particularly because the agencies were preparing for the end of Title 42 well before it was announced, such that they could have issued the Notice with sufficient time to grant a longer comment period and still have had the Rule in place when Title 42 expired. The agencies also did not disclose other, relevant policy changes that would affect the agencies’ reasoning for adopting the Rule, including one that controverted an assumption central to the agencies’ projection of post-Title 42 encounters at the southern border.

For those reasons, Judge Tigar vacated the rule and remanded it back to the agencies.

Tigar also said the “order shall be stayed for 14 days.”

The DOJ filed an appeal, disagreeing with Tigar’s decision: “We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws.”


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Subotai Bahadur | July 25, 2023 at 8:38 pm

But under the Left’s doctrine of “Popular Constitutionalism” what basis does the court have to expect that its order will be obeyed or even acknowledged?

Subotai Bahadur

JohnSmith100 | July 25, 2023 at 8:59 pm

First stop the invasion, when that is complete round up every illegal and expel them.

BierceAmbrose | July 25, 2023 at 10:29 pm

“…a lawful exercise of the broad authority granted by the immigration laws.”

Ah for the simpler day of my youth, when there wasn’t so much “broad authority” flopping about for this agency or that to direct request the executive to direct them to use.

Let’s review the bidding.

* This last week The Presidency announces “additional” rule making going after hot water heaters and washing machines, *after* The Supremes struck down an EPA power grab based on naming Co2 a pollutant. Also *after* The Supremes struck down another power grab reclassifying every puddle, ditch, watering station and out house as “navigable waters”, thus untouchable except with their express permission.

* This next round of The Appliance Wars is *after* we’re honest, totally not, pinkey-swear, comin after your gas stoves. Which they slapped a rule on later, anyway.

— Why? Well, the consumer protection agency couldn’t git er done.

— Why were they trying? Well, they got a letter from a couple congresscritters.

— Why a letter? Well, the pests were contacted by an enviro-group waving critical new findings. So, of course, being in congress they wrote a letter to The Bureau of Messing With Appliances. It’s not like they could pass a law. Them being out front on this being a very important and critical thing, you’d think they’d want to campaign on it.

— Where did the critical new findings come from? Well funded by — wait for it — the same folks who fund the enviro group that brought it to the congresscritters.

What’s the term for astroturfing institutions, with their collusion? The whole “issue” is invented. And lo, the only and necessary answer is to make your life harder, by new regulating and requiring. Shocking noone.

JohnSmith100 | July 26, 2023 at 4:49 pm

Every bureaucracy schemes to get bigger, have more money and increase their power and arrogance.