Federal court blocks Biden rule limiting asylum for migrants, a big blow to administration

People standing and sitting bundled up alongside a tall border fence
Immigrants bundle up against the cold after spending the night camped alongside the U.S.-Mexico border fence next to El Paso in December 2022.
(John Moore / Getty Images)

A federal judge in Oakland on Tuesday blocked a Biden administration rule that limits migrants’ access to asylum at the southern border, casting doubt on the future of a key policy aimed at limiting crossings.

The order from federal Judge Jon S. Tigar, who was appointed by President Obama, won’t take effect for two weeks. The Biden administration quickly appealed the ruling to the U.S. 9th Circuit Court of Appeals and asked Tigar to stay his order while the higher court considers the matter.

If the administration is unsuccessful in the 9th Circuit, it could appeal to the U.S. Supreme Court.


The policy, which restricts access to asylum for migrants who come through a third country on their way to the U.S. without applying for protections, is the centerpiece of the Biden administration’s efforts to reduce the number of migrants crossing without authorization each month.

Tigar said Tuesday that the rule was “contrary to law” because it presumed that people who crossed the southern border were ineligible for asylum.

Biden administration officials have said in court declarations that without the policy, border crossings will increase, straining government resources. In June, crossings at the border were at their lowest level in more than two years.

Homeland Security Secretary Alejandro N. Mayorkas said in an emailed statement Tuesday that the agency “strongly” disagrees with the ruling and is “confident” that the rule is lawful.

“To be clear, because the district court temporarily stayed its decision, today’s ruling does not change anything immediately,” he added in remarks directed at potential border crossers. “It does not limit our ability to deliver consequences for unlawful entry. Do not believe the lies of smugglers.”

The rule targets people who enter the U.S. without authorization. Government officials have encouraged asylum seekers to instead use a Customs and Border Protection app called CBP One to schedule an appointment at a port of entry. U.S. officials have also advertised a system that allows asylum seekers from Cuba, Venezuela, Haiti and Nicaragua to apply for entry into the U.S. provided they have a financial sponsor and can pass security checks.

Tigar said that applying for asylum on the way to the southern border is not feasible for many migrants. He added that waiting in Mexico for appointments at a port of entry was similarly difficult.


“Because CBP One access is limited to central and northern Mexico, asylum seekers must remain in these areas until they successfully secure an appointment,” he wrote. “The record suggests that migrants waiting in Mexico are at serious risk of violence.”

In 2019, Tigar blocked the Trump administration’s version of the policy. The Supreme Court later stayed that order.

Advocates for immigrants have blasted the Biden administration’s asylum limits, labeling them as nothing more than a return to former President Trump’s strict policies.

The legal challenge to President Biden’s policy was filed by the American Civil Liberties Union, the National Immigrant Justice Center and the UC Hastings Center for Gender and Refugee Studies in May, when the policy went into place. The groups celebrated Tigar’s ruling on Tuesday.

“The ruling is a victory, 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,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, said in an emailed statement.

“The promise of America is to serve as a beacon of freedom and hope,” she added, “and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”


Biden administration officials have said that the policy is intended to discourage unauthorized migration and encourage people to seek alternatives.

“As intended, the rule has significantly reduced screen-in rates for noncitizens encountered along the [U.S.-Mexico border],” Blas Nuñez-Neto, a senior Homeland Security official, wrote in the filing. “The decline in encounters at the U.S. border, and entries into the Darién Gap, show that the application of consequences as a result of the rule’s implementation is disincentivizing noncitizens from pursuing irregular migration and incentivizing them to use safe and orderly pathways.”

Nuñez-Neto said in the late June declaration that there were 104,000 migrants in northern Mexico and that many appeared to be “waiting to see whether the strengthened consequences associated with the rule’s implementation are real.”

Data from his filing appeared to confirm that the policy had significantly lowered the share of migrants at the southern border who crossed into the U.S. and were allowed to apply for asylum.

In their request to stay Tigar’s order pending appeal, government attorneys said that his ruling undermined “efforts taken to prevent an expected increase in encounters at the southwest border following the termination of the Title 42,” referring to the public health measure that allowed border agents to quickly turn away migrants at the border before it was discontinued on May 11.

The policy Tigar deemed unlawful helps prevent a “potentially significant increase in encounters at the southwest border, which would overwhelm the immigration system, incentivize human smuggling, lead to extreme overcrowding in border facilities” and undermine agencies’ ability to manage the immigration system, the government’s attorneys argued.