Court allows asylum 'ban' to continue at US southern border amid legal challenge

A court has decided to maintain the de facto ban on claiming asylum at the US southern border, which was implemented in May as a measure to control the feared influx of migrants. The rule change made it nearly impossible for most migrants to lodge asylum claims when crossing by land from Mexico.

The Biden administration clarified that asylum claims would still be accepted, but only if made in the migrant’s home country or in a country they had passed through on their way to the United States. This move aimed to address the previous use of Title 42, a public health measure implemented during the Covid-19 pandemic that effectively prevented undocumented individuals from entering the country.

Critics, including the American Civil Liberties Union (ACLU), challenged the legality of this provision and sought its reversal through legal action. Last month, Judge Jon Tigar of the US district court in San Francisco declared the policy “unlawful,” but suspended the ruling for 14 days to allow the administration to appeal.

On Thursday, the Ninth Circuit Panel decided to stay Judge Tigar’s ruling from July 25, pending the outcome of the Biden administration’s appeal. The panel has committed to expedite the process and set a deadline for submissions by August 24.

Responding to the court’s decision, Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, expressed confidence that they will prevail when the court thoroughly considers the claims. She also emphasized the urgency of resolving the issue to prevent vulnerable individuals from being put in harm’s way while the ban remains in effect.

The Department of Justice, in its appeal last month, asserted that the new border rules were a lawful exercise of the broad authority granted by immigration laws. The administration had been concerned that up to 200,000 people would attempt to cross into the country monthly once Covid-19 restrictions were lifted.

Under the new provisions, migrants at the border are required to use a smartphone app to obtain an interview appointment, leading to lengthy waiting times. Those in other locations have to request asylum from their home country or at designated centers in countries they pass through. Failure to follow the prescribed process automatically results in the loss of the opportunity to claim asylum.

The policy also raised the burden of proof for applicants and prolonged the waiting period for rulings. However, exceptions were made for unaccompanied children crossing the border, and citizens of certain countries like Haiti and Ukraine were offered a separate formal parole process.

The impact of the change was quickly evident, with the number of border patrol interdictions or “encounters” with migrants declining from 212,000 in April to 145,000 in June, according to Customs and Border Protection figures.