by Maurizio Sacchi

On 23 July, a federal judge rejected a new migrant asylum policy proposed by the Biden administration. Under the policy, no migrant would be able to claim asylum if they entered the United States without making an official claim at a port of entry or en route. If passed, the measure would trap hundreds of thousands of foreigners in illegal status, working gruelling, low-wage jobs in factories and on farms.

The judge, Jon S. Tigar of the US District Court for the Northern District of California, immediately suspended the measure for 14 days, leaving the asylum policy in place while the federal government appeals the decision. The Court of Appeals could extend the stay while it considers the appeal. Immigrant advocacy groups suing the administration said the policy violated immigration law, which says aliens who reach US soil have the right to seek asylum, regardless of how they entered the country.

Judge Tigar, who in 2019 overturned a similar rule put in place by the Trump administration, said he found the policy, in effect since May 12, to be “both substantively and procedurally invalid”.

The Biden administration proposed the new measure when it ended the Trump-era public health measure known as Title 42, under which illegal border-crossers were swiftly deported under the guise of fighting pandemics. But even without this new restrictive law, the number of migrants apprehended at the southern border has plummeted during Biden’s presidency, with fewer than 100,000 apprehended as of June, the lowest number since February 2021.

But the civil rights groups that brought the lawsuit against the rule, while praising the judge’s decision, said migrants will remain vulnerable as long as the rule remains in place. The plaintiffs argue that the rule is procedurally illegal because the public was not given enough time to comment on it. Judge Tigar, who was appointed by President Barack Obama, agreed, writing that the administration failed to comply with the Administrative Procedure Act, which requires adequate opportunity for public comment. The administration argued in court that the policy had prevented chaos at the border and that if it were revoked, illegal crossings would increase, straining government resources and creating dangerous conditions such as overcrowding in migrant processing facilities.

Washington credits a range of policies for the sharp decline in migrant flows. Some are repressive, some are not.  Mexican authorities intercept migrants entering Mexico from the south and send them back to Guatemala, or have prevented them from heading north to the US border. But perhaps more importantly, new US programmes have allowed several hundred thousand people to enter legally this year for stays of at least two years, provided they have a financial sponsor or an active visa application to reunite with relatives.

Asylum seekers already near the US-Mexico border are instructed to use a US government form to make an appointment to present themselves at land entry points. Although the programme has some flaws and many people wait months for an appointment, the number of available appointments has steadily increased to around 40,000 per month. And the policy has helped relieve pressure on the border, where federal agents apprehended 2.4 million people fleeing poverty, political repression and violence in 2022 alone.

Today, more than two million cases are pending in immigration courts, and about four in ten are asylum claims. The Department of Justice estimates that about one million new cases will be filed this year. Although new judges have been hired and the process has been streamlined, the courts are expected to complete only 500,000 cases a year. Concerned by these figures, the government presented the bill, which has been blocked for the time being.

Blas Nuñez-Neto, an official in the Ministry of National Security, defended the new regulation: ‘Once in the immigration court system, migrants are entitled to work permits (…).  This means they have years to live in the US, earn money and support their families back home’,

The US-Mexico border as seen by the US Army – Sgt. 1st Class Gordon Hyde –