Updated Jul 25, 2023 - Politics & Policy

Court blocks Biden's strict border rule

In an aerial view, migrants seeking asylum wade through the Rio Grande river into the U.S. in Eagle Pass, Texas. Photo: Brandon Bell via Getty Images

A federal judge has blocked a key Biden administration policy that imposed harsh asylum restrictions on migrants who illegally crossed the U.S.-Mexico border. The administration is appealing the ruling.

Why it matters: The administration has at least partially credited the new rule for plummeting illegal border crossings.

  • The decline has been a win for President Biden, who has struggled to control massive waves of migration.
  • The judge's ruling won't go into effect for 14 days.

Zoom in: "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 ruling states.

  • "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."

Zoom out: It's another example of courts disrupting border and immigration policy — a phenomenon that has led to rapid changes in how the border has been managed over the past two administrations.

  • California Judge Jon Tigar previously ruled against a similar "transit ban" policy under the Trump administration.
  • Whiles former President Trump's version of the policy was even more restrictive, both policies make it harder for migrants to obtain asylum if they cross illegally and do not first apply for protection in a country they travelled through to get to the U.S.-Mexico border.

What they're saying: "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," said Katrina Eiland, who are argued the case as deputy director of the ACLU’s Immigrants’ Rights Project.

  • Immigration advocates and some Democrats have been outraged over the policy.

The other side: A Department of Justice spokesperson said in an emailed comment Tuesday evening that it disagreed with the ruling and had filed a notice of appeal against 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," the spokesperson said.
  • Department of Homeland Security Secretary Alejandro Mayorkas echoed the DOJ's comments in an email Tuesday evening: "To be clear, because the district court temporarily stayed its decision, today's ruling does not change anything immediately."
  • "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," the DHS spokesperson said.
  • The DHS spokesperson added that the administration encouraged migrants "to ignore the lies of smugglers and use lawful, safe, and orderly pathways that have been expanded under the Biden Administration."

By the numbers: Despite concerns that the May 11 end of a pandemic policy allowing for the rapid expulsion of migrants would drive a surge in migration across the U.S.-Mexico border, border numbers have plummeted.

  • This is likely due to a combination of the new asylum restrictions and the return to regular deportation processes, which come with harsher penalties — such as a five-year ban on reentry.
  • Expulsion under Title 42 carried no real consequences for multiple attempts at illegally crossing the border.

Editor's note: This article has been updated with comment from the DOJ and DHS, and to reflect the Justice Department's legal response.

Go deeper: Listen to the Axios Today podcast, where host Niala Boodhoo and Stef Kight catch us up on the situation with migrants right now at the Southern border.

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