Federal Judge Blocks Biden (Trump) Asylum Ban – for Now

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By The Vanguard

SAN FRANCISCO, CA – A host of pro-migrant groups, including the ACLU, hailed as a victory Tuesday a federal court ruling that blocked the Biden administration’s new asylum ban, but lamented it “delayed its ruling from taking effect for 14 days.”

A lawsuit, East Bay Sanctuary Covenant v. Biden, was filed in May “when the Biden administration implemented the new asylum restrictions that mimic two past policies — the “entry” and “transit” bans — which were struck down by the courts under the Trump administration,” explained the ACLU in a statement.

The plaintiffs—East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center—are represented by the American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies, and National Immigrant Justice Center.

Defendants include President Joseph R. Biden, Merrick Garland, U.S. Dept. of Justice (“DOJ”), David Neal, Executive Office of Immigration Review, Alejandro Mayorkas, U.S. Dept. of Homeland Security (“DHS”), Ur Jaddou, United States Citizenship and Immigration Services, Troy A. Miller, United States Customs and Border Protection (“CBP”), Tae D. Johnson, and Immigration and Customs Enforcement (“ICE”).

“The ruling is a victory. The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case.

Eiland added, “but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger.”

The Biden Rule—in effect the same as the Trump Rule—applied “a presumption of asylum ineligibility to noncitizens who traveled through a country other than their own before entering the U.S. through the southern border with Mexico. Unless they meet one of several exceptions, such individuals will be presumed ineligible for asylum,” noted the pleading.

Exceptions, added the court, would only be a “showing of ‘exceptionally compelling circumstances’ at the time of entry…exceptions for unaccompanied children, noncitizens authorized to travel to the U.S….certain noncitizens who present at a port of entry, and noncitizens who have been denied asylum or other forms of protection by another country.”

Plaintiffs are organizations that represent and assist asylum seekers (who) “argue the Rule is invalid under the Administrative Procedure Act (‘APA’) for three reasons: first, it is contrary to law; second, it is arbitrary and capricious; and third, it was issued without adequate opportunity for public comment,” summarized the court.

U.S. District Court Judge Jon Tigar of the Northern District of California said, in his ruling, he was “not persuaded that deviating from the presumed remedy of vacatur and remand is appropriate in this case. The Court is mindful that this is “a time of heightened irregular migration throughout the Western Hemisphere (and) that such migration has dropped since the Rule went into effect.”

Tigar added, “(I)n the absence of the Rule’s presumption of asylum ineligibility, DHS anticipates a return to elevated encounter levels that would place significant strain on DHS components, border communities, and interior cities…But the Rule—which has been in effect for two months—cannot remain in place, and vacating the challenged Rule would restore a regulatory regime that was in place for decades before.”

The government previously indicated that it may ask the Ninth Circuit Court of Appeals for further relief from the ruling.

Melissa Crow, director of litigation at the Center for Gender & Refugee Studies, said, “The court got it right. President Biden’s asylum ban violates our laws and makes a mockery of our asylum system. Last week the government conceded that, under the ban, people with meritorious legal claims can be barred from asylum and deported to countries where they face grave harm. To them, that is an acceptable price to pay for the illusion of border management.”

But, added Crow, “they are breaking the law, sowing chaos, and putting vulnerable people in harm’s way. We urge the administration to stop defending this illegal policy, and instead take immediate steps to establish a fair and humane process that upholds the rights of all people seeking refuge at our nation’s doorstep.”

Keren Zwick, director of litigation at the National Immigrant Justice Center, argued, “The court’s ruling is welcome and expected, since the new policy simply rehashed prior rules that restricted access to asylum based on similar grounds, which courts already rejected. 

“U.S. laws protect the rights of people fleeing persecution to come to this country and pursue asylum, full stop. We encourage the Biden administration to now direct its resources to upholding that right, rather than fighting to continue this unlawful and inhumane asylum ban.”

The full ruling: https://www.aclu.org/documents/east-bay-sanctuary-covenant-v-biden-summary-judgment-order

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