A federal judge on Tuesday blocked an immigration rule that largely limits access to asylum – a move criticized by the Biden administration but praised by El Paso area human rights groups who are also concerned about its potential impact on the border region.
The rule enacted by the Biden administration in May allows authorities to deny asylum to most migrants who don’t apply online or seek protection in a country they passed through before arriving at the U.S.-Mexico border.
Calling the asylum rule lawful, Secretary of Homeland Security Alejandro N. Mayorkas in a statement said he disagreed with the ruling and that the Department of Justice will seek a stay pending appeal. He then issued a message to migrants, encouraging them to use “lawful, safe and orderly pathways” to seek asylum.
“To be clear, because the district court temporarily stayed its decision, today’s ruling does not change anything immediately,” he said. “It does not limit our ability to deliver consequences for unlawful entry. Do not believe the lies of smugglers. 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.”
U.S. District Judge Jon Tigar of the Northern District of California delayed his ruling from taking effect for 14 days, giving the Biden administration time to appeal. The ruling comes as the result of a lawsuit filed by the American Civil Liberties Union and other human rights organizations who argued Biden’s rule violated U.S. laws that protect the right to asylum regardless of how a person enters the country.
The Circumvention of Lawful Pathways rule – called an “asylum ban” by migrant advocates – is considered a key enforcement tool that essentially replaced Title 42 in May. Invoked at the start of the pandemic in March 2020, Title 42 allowed the U.S. to quickly expel migrants without giving them an opportunity to seek asylum on the grounds of preventing the spread of COVID-19. Title 42 expired on May 11 when the government ended its pandemic emergency decree.
“It’s great news to hear that people will have one less barrier to apply for asylum,” said Melissa M. Lopez, executive director of El Paso Diocesan Migrant and Refugee Services, applauding the ruling. “The system is already complex without adding another layer to it.”
Lopez said she believes the stay and likely appeal means there won’t be an immediate impact to the community. But even if the rule were to be lifted down the line, she doesn’t anticipate as large a surge of migrants as anticipated in May.
“I think there’s already a lot of people seeking asylum and working through the system who will just stay on track,” she said.
But Ruben Garcia, founder and director of the Annunciation House shelter network, said the ruling could have major implications for the border: a large influx of migrants again making their way to the region. Whether the region can handle that influx would depend on numerous factors, including the migrants’ nationalities.
“You are going to see the numbers of people coming in increase,” he said. “But how many and at what rate is all speculation.”
If the majority of those people coming in are from Central America – El Salvador and Honduras, for example – it’s likely that they’ll have the funds to pay for their own travel outside of the region to their next destination. The existing network of migrant shelters together with the county’s Migrant Support Services Center could manage, Garcia said.
But as was seen late last year, particularly in December, if those migrants are largely from Venezuela, the situation could be dire, he added. That’s because most Venezuelans who arrive here do so without money to travel or family to receive them. That in turn overcrowds shelters and leads to many having to sleep in the streets.
“We are very busy but we are handling the numbers,” Garcia said about the current capacity at area shelters, adding that the number of migrants temporarily housed at area shelters did not “surge” as expected after May 11. “But what will happen now we just don’t know yet.”
Garcia called Biden’s asylum rule a “carrot and a stick” – with the use of the CBPOne App to make an appointment to request asylum the carrot and the so-called asylum ban as the stick if they don’t.
“But if you lose the ability to use the asylum ban as the stick, more people are likely going to be willing to say, ‘I’ll just take a chance and cross,’” Garcia said, adding that could lead to an increase in the number of people crossing illegally.
The El Paso County Migrant Support Services Center, which helps coordinate travel arrangements for migrants with funds to pay their own way, had scaled up its capacity to help process up to 1,200 migrants daily ahead of the lifting of Title 42. When the new rule was implemented and the anticipated rush of migrants didn’t happen, it scaled back down to manage about 700 a day.
Today, the center can process about 250 migrants a day; though it served fewer than 600 migrants in June. That compares to nearly 6,000 in May and 3,000 in April.
Mario D’Agostino, the city’s deputy city manager overseeing emergency operations related to migrants, said the ruling was “not good news.”
“But we continue to diversify our response,” he said, adding that the city could use hotels to help shelter migrants if an influx occurred while the city would “continue to identify possible locations for sheltering.”
The city shut down the emergency shelter it stood up with the help of the American Red Cross at Bassett Middle School in May. But its agreement with the El Paso Independent School District to use the school as needed still stands, officials said.
The city’s emergency ordinance, which allows the city to assign staff and resources to provide humanitarian relief to migrants, remains in place although the disaster declaration issued in May has expired, city officials said.
Las Americas Immigrant Advocacy Center in El Paso also praised the ruling, comparing Biden’s asylum rule to that of President Trump.
“President Biden’s asylum ban is illegal and dangerous, just like his predecessor’s racist travel ban, causing irreparable damage to countless individuals every single day since its implementation,” Jennifer Babaie, the organization’s director of Advocacy and Legal Services, said in a statement.
“Our government needs to invest in the legal and humanitarian infrastructures designed to protect vulnerable people on the move and focus on the dignity and humanity of people seeking safety at our borders,” Babaie said. “By doing so, we can ensure a border that is safe, humane, and orderly while meeting our legal and ethical obligations.”
The Biden administration plans to appeal to the U.S. 9th Circuit Court of Appeals. That court previously affirmed Tigar’s rulings on Trump’s policies, which Tigar blocked in 2019. The Supreme Court stayed the order.
Garcia fears this case can also reach the U.S. Supreme Court. The conservative majority on the court might give Biden “a win” Garcia said, which would again put severe limitations on asylum rights.
