A Biden administration rule restricting asylum at the southern border can stay in place for now, an appeals court ruled on Thursday in a decision that is a win for the White House.
The new rule makes it extremely difficult for people to be granted asylum unless they first seek protection in a country they’re traveling through on their way to the US or apply online. It includes room for exceptions and does not apply to children traveling alone. The Biden administration had argued the policy was integral to its efforts to maintain order along the US-Mexico border.
The decision by the US ninth circuit court of appeals grants a temporary reprieve from a lower court decision that had found the policy illegal and ordered the government to end its use by this coming Monday. The government had gone quickly to the appeals court asking for the rule to be allowed to remain in use while the larger court battles surrounding its legality play out.
The restrictions can remain in place pending the outcome of Biden’s appeal, the ninth circuit court said, saying it would expedite the process.
The new asylum rule was put in place in May as the US was ending use of a different policy called Title 42, which had allowed the government to swiftly expel migrants without letting them seek asylum. The stated purpose of Title 42, enacted under Donald Trump during the pandemic, was to protect Americans from the coronavirus.
The administration was concerned about an increase in migrants coming to the US post-Title 42 because they would finally be able to apply for asylum. The government said the new asylum rule was an important tool to control migration.
Rights groups sued, saying the new rule endangered migrants by leaving them in northern Mexico as they waited to score an appointment on the CBP One app the government is using to grant migrants the opportunity to come to the border and seek asylum. The groups argued that people are allowed to seek asylum regardless of where or how they cross the border and that the government app is faulty.
The groups also have argued that the government is overestimating the importance of the new rule in controlling migration. They say that when the US ended the use of Title 42, it went back to what’s called Title 8 processing of migrants. That type of processing has much stronger repercussions for migrants who are deported, such as a five-year bar on reentering the US. Those consequences – not the asylum rule – were more important in stemming migration after 11 May, the groups argue.
“The government has no evidence that the rule itself is responsible for the decrease in crossings between ports after Title 42 expired,” the groups wrote in court briefs.
But the government has argued that the rule is a fundamental part of its immigration policy of encouraging people to use lawful pathways to come to the US and imposing strong consequences on those who don’t. The government claimed “enormous harms” would come if it could no longer use the rule.
“The Rule is of paramount importance to the orderly management of the Nation’s immigration system at the southwest border,” the government wrote.
The government also argued that it was better to keep the rule in place while the lawsuit plays out in the coming months to prevent a “policy whipsaw” whereby Homeland Security staff process asylum seekers without the rule for a while only to revert to using it again should the government ultimately prevail on the merits of the case.
