Last week, a federal court struck down President Biden's border enforcement rule, known as the Circumvention of Normal Pathways rule. The decision jeopardizes "the administration’s strictest deterrence measure to date and comes as illegal border crossings have plunged to their lowest level since President Joe Biden’s first full month in office."

Today, we'll discuss the Biden Administration's rule, why a judge found that the rule is illegal, and the practical and political implications of the court's ruling.

The Circumvention of Normal Pathways rule went into effect in May 2023, and was intended to replace Title 42, a pandemic-era restriction that had made it more difficult to seek asylum at the U.S.-Mexico border. Despite Title 42, record numbers of asylum seekers had been arriving at the border during the last two years, and the Biden Administration feared a significant increase in arrivals when the public health emergency ended.

The new rule established a "rebuttable presumption" that anyone who arrives at the Southern border is ineligible for asylum if they traveled through a third country (such as Mexico) to reach the U.S. There were a number of exceptions to the rule, including for unaccompanied minors, people who have "authorization to travel to the United States to seek parole, pursuant to a DHS-approved parole process" (i.e., the CBP One app, which allows asylum seekers to schedule an appointment at the border, or one of the "expanded pathways" for certain nationals to come to the U.S.), people who arrive at the border without an appointment but who can show that they could not make an appointment due to a "language barrier, illiteracy, significant technical failure, or other ongoing serious obstacle," or people who sought asylum in a third country, but had their application denied for reasons other than abandoning the claim for protection. In addition, the presumption of ineligibility could be rebutted if there were "exceptionally compelling circumstances," such as a medical emergency, an "imminent and extreme threat to life or safety" or "severe... trafficking in persons." People found to have violated the rule would be subject to a five year (or longer) bar to admission.

Immigration advocates objected to the rule on a number of grounds. Though DHS has created "expanded pathways" for certain nationals to come to the U.S., many asylum seekers were unable to qualify for this program, as "they must secure a passport, afford international commercial air travel to the U.S., and find a U.S.-based sponsor who’s willing to support them financially." Migrants who wish to make an appointment using the CBP One app often face technical issues that make it difficult to secure an appointment. Also, there are too few appointments available to meet the demand. Finally, in practical terms, it is not realistic to seek asylum in a third country, since many of the countries that migrants pass through are dangerous and/or do not have functioning asylum systems.

Advocates further argue that forcing migrants to wait in Mexico for an appointment is dangerous. There have been thousands of reports about violence targeting migrants near the border.

A number of organizations--led by the ACLU, the Center for Gender & Refugee Studies, and the National Immigrant Justice Center--filed a lawsuit challenging the Biden Administration's new rule.

Ultimately, a federal court found the new rule invalid on substantive and procedural grounds. Substantively, the rule violates the Immigration and Nationality Act, INA § 208(a)(1), which states "Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival...), irrespective of such alien's status, may apply for asylum in accordance with this section...." In other words, a migrant arriving in the U.S. or at the border has a right to seek asylum, regardless of where the migrant enters or whether the migrant has passed through a third country. Procedurally, the court found that the rule was implemented improperly under the Administrative Procedure Act. For these reasons, the court struck down the rule as unlawful. However, the court stayed its order for 14 days to allow the Biden Administration time to appeal (as of yesterday, the court denied the government's request for a further stay ). For the next week, then, the rule remains in effect. After that, it will depend on the appellate court (the Administration also faces a legal challenge from certain Republican-led states, which believe the rule "encourages migrants and asylum seekers to illegally enter the country").

If the rule is ultimately blocked, it is unclear how the Biden Administration will react, or how the situation at the border will change. Since the rule was implemented in May, the border has apparently become more orderly, and so the fear is that if the rule ends, the border will become more chaotic. I suppose immigration advocates would argue that the Administration should address this problem by devoting more resources to the border, in order to fulfill our country's obligations to asylum seekers.

While I agree with this in theory, I don't see it working in practice. With the House of Representatives in Republican hands, additional money for asylum seekers at the border will not be forthcoming. In that case, the Administration will have to get money from somewhere, and I worry that they will take resources from people waiting at the Asylum Offices and in Immigration Court. I also worry that these resources will not be enough, and that the border will fall into chaos.

And of course, chaos at the border will benefit the Trump campaign, which has made illegal immigration a centerpiece of it's effort to re-take the White House, and which poses a grave danger to all immigrants (and to everyone else).

So what should advocates have done? Let the rule be? Allowed the Biden Administration to limit asylum at the border in order to boost its prospects in next year's election? I do not know. But I do know that we who advocate for more liberal asylum policies have not yet convinced the majority of our countrymen, and as long as that disconnect continues, we will remain politically vulnerable if the situation at the border deteriorates.

In the end, there are reasons to celebrate the court's decision. But as a confirmed pessimist, I worry that it will do more harm than good--to asylum seekers, immigrants, and our democracy.

Originally posted on the Asylumist: