Judge Vacates Biden Border Rule as Conflicting with Asylum Law

On July 25, Judge Jon Tigar of the Northern District of California vacated the Biden administration’s border rule, based on a challenge mounted by lawyers at the American Civil Liberties Union and the University of California San Francisco School of Law’s Center for Gender and Refugee Studies. The Biden administration had implemented the rule in mid-May of this year, replacing coronavirus-era Title 42 restrictions. Tigar, who stayed his decision for 14 days to allow the government to appeal, found that the rule, which limited eligibility for asylum-seekers on the southern border, was invalid for three reasons: (a) The rule conflicted with 8 U.S.C. § 1158, the asylum provision of the Immigration and Nationality Act (INA); (b) the agencies that issued the rule—the Department of Homeland Security and the Department of Justice—did not adequately explain the rule, rendering it “arbitrary and capricious” under the Administrative Procedure Act (APA); and (c) the agencies violated the APA’s provisions for public participation by providing only slightly over a month for submission of comments on the proposed rule. 

The Biden Border Rule

Shalini Bhargana Ray recently described in Lawfare that the rule imposes limits on many applicants for asylum at the southern border, if those applicants have not (a) used a new government app, CBP (Customs and Border Protection) One, to schedule an appointment at an official port of entry; (b) applied for asylum or other humanitarian protection in another country through which they traveled on the way to the United States; or (c) showed compelling circumstances such as an imminent and extreme threat to life or safety that impaired their access to options (a) or (b). 

Under the INA, a noncitizen can seek asylum based on a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a legal status that can lead to lawful permanent residence in the United States and eventually U.S. citizenship. The INA’s asylum provision, 8 U.S.C. § 1158, states that a noncitizen is eligible for asylum if that individual “is physically present in the United States or … arrives in the United States (whether or not at a designated port of arrival),” such as an official border crossing (emphasis added).

The agencies issuing the border rule argued that limits were necessary to manage a substantial uptick in prospective border entrants that occurred in anticipation of the end of Title 42, a program started during the Trump administration in which the Centers for Disease Control and Prevention had barred entry of most asylum-seekers at the southern border due to concerns about the coronavirus. Prospective entrants affected by Title 42, and now by the Biden border rule, lack an immigrant visa—usually based on a close family tie to a U.S. citizen or lawful permanent resident (LPR). They also lack a nonimmigrant visa that U.S. State Department officials give to students, tourists, and temporary workers. Statistics cited in the preamble to the rule that replaced Title 42 indicated that attempted entries at the border could reach and remain at levels of 10,000 per day, due to violence, government, repression, climate change, and poor economic conditions in prospective entrants’ home countries. According to the Homeland Security and Justice agencies, led, respectively, by Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland, the inflow of asylum applicants at this level would severely disrupt asylum and border processing, straining government resources and personnel. 

That strain would be particularly severe, they argued, if border-crossers entered the United States at points not officially designated as ports of entry. Some border-crossers would reach the U.S. interior, even though they lacked a visa or any other status that would allow them to remain in the country. That “entry without inspection” would undermine enforcement of U.S. immigration law. As the Supreme Court explained in the 2021 case of Sanchez v. Mayorkas, much U.S. immigration law is premised on orderly presentation of prospective border entrants at those officially designated points, where CBP officers can determine if noncitizens have a visa and do not trigger any grounds for inadmissibility to the United States, such as an infectious disease, criminal record, or national security threat. Noncitizens who enter without inspection would join the approximately 11 million undocumented noncitizens who currently reside in the United States without a lawful basis to remain here.

Asylum, the Border, and the Immigration Court Backlog

While in the past decade many such entrants have presented themselves as asylum-seekers to the first CBP officers they encountered near the southern border, this voluntary surrender also causes ongoing problems for U.S. border processing and law enforcement. Noncitizens who turn themselves in have a right to claim asylum. Under the expedited removal process that Congress enacted in 1996 to speed up asylum decisions for foreign nationals arrested at the border, an asylum officer conducts an interview after the foreign national’s arrest. The timing of the interview can range from a few days to six weeks after the arrest. If the asylum officer finds that the foreign national does not have a “credible fear” of persecution and an immigration judge from the Justice Department agrees in a short hearing, the United States can deport (“remove,” under the INA) that person. Judicial review is minimal, a result the Supreme Court upheld in the 2020 decision, Department of Homeland Security v. Thuraissigiam. 

In practice, however, expedited removal has created further enforcement challenges for the government, which can detain noncitizens while the expedited removal process proceeds. However, as the Supreme Court observed in Thuraissigiam, a significant majority of noncitizens receive a credible-fear finding from an asylum officer, entitling them to a full adversarial hearing before an immigration judge. While the government has the legal power to detain many of these asylum applicants until they get their hearing, low levels of congressional appropriations have limited detention capacity, as the Supreme Court has observed recently. As a result, the government has often used its authority under the INA to parole noncitizens, releasing them into the U.S. interior while they await their hearings. Under the INA, an asylum applicant can obtain a work permit within 180 days of filing an asylum application. Immigration courts currently have a backlog of over 2 million cases awaiting a hearing before an immigration judge. 

Due to the burgeoning backlog, an asylum applicant who files an application today will probably not receive a full hearing until four years from now. Despite a preliminary credible-fear finding that allows applicants to have a full hearing, that hearing yields disappointment for a majority of asylum-seekers. As the Supreme Court recounted in Thuraissigiam, in most cases that immigration judges decide after full hearings, the judge rules that the applicant has not shown a “well-founded fear” that if the government removed them to their country of origin, they would face persecution based on race, religion, nationality, political opinion, or membership in a particular social group. However, as a Homeland Security report noted in 2019, hundreds of thousands of unsuccessful asylum applicants and other noncitizens who have received final orders of removal from the United States do not cooperate with Homeland Security in the removal process. The department cannot find or remove the vast majority of these individuals, who then add to the numbers of undocumented noncitizens in the United States participating in the informal economy. The prospect of working in the United States legally for at least four years and then remaining in the country indefinitely is a “pull factor” that encourages even more “irregular” entries outside the visa process. Together with accelerating “push factors,” such as violence and poor economic conditions in home countries, this pull factor has created massive enforcement challenges for U.S. immigration officials. On a policy level, the Biden border rule is a serious effort to address enforcement issues. 

Carrots and Sticks in the Biden Rule 

The Biden approach to managing border inflows combines carrots with sticks. This integrated approach is an important innovation in immigration processing and enforcement. The main carrot that these programs provide helps asylum-seekers who have a choice in their pathway to the United States. The agencies’ preamble to the border rule highlights these programs, while asserting that even if the courts halted them, the border rule would be within the agencies’ discretion. 

The CBP One app that asylum applicants must use to arrange a border appointment makes 1,450 processing slots available each day. At peak periods with daily apprehensions of more than 7,000 noncitizens, that figure cannot meet the demand. However, the added efficiency and certainty to border processing may be useful for asylum applicants, as well as immigration officials, even if not entirely sufficient to meet demand. 

For smartphone users, the relative ease of using CBP One—despite glitches discussed below—takes some of the nagging anxiety and tedium out of border crossing. That efficiency effect may be one factor contributing to the marked drop in border crossings since mid-May, when the new rule came into effect.

The agencies have also provided an opportunity for noncitizens from Cuba, Haiti, Nicaragua, and Venezuela (collectively, CHNV)—currently a majority of asylum applicants—to apply in their home countries for parole into the United States under 8 U.S.C. § 11182(d)(5). (The Cuba process is detailed separately here.) Modeled after the successful Uniting for Ukraine parole program that has resulted in parole for thousands of Ukrainians with U.S. sponsors since the start of the Russia-Ukraine conflict, the CHNV program makes a total of 30,000 slots available per month for nationals of these countries who can show humanitarian reasons for parole into the United States, including asylum claims. CHNV participants, who can stay in the United States for a renewable two-year period, must have U.S. sponsors and enter the country at an airport, not the border. 

The Department of Homeland Security is extending the CHNV program in a somewhat more restricted form to other countries in Central and South America, including Colombia, El Salvador, Guatemala, and Honduras, whose nationals also seek in large numbers to enter the United States. States such as Texas have mounted a legal challenge to these expanded parole programs, arguing that they exceed Homeland Security’s authority under the INA in a lawsuit that is now pending before U.S. District Court Judge Drew Tipton in the Southern District of Texas. 

As a policy matter, the parole programs are an important component of the agencies’ efforts to effectively manage the border. The parole programs’ availability dissipates the drivers of border inflow, although it does not extinguish those causes. Noncitizens eligible for the CHNV and analogous programs might well prefer the clear channel those programs provide to the difficult and dangerous journey through Mexico that asylum applicants face to get to the border, and the uncertainty that noncitizens encounter once they arrive. In addition, availability of this safety valve for prospective entrants was necessary to achieve Mexico’s cooperation with the border rule, which hinges on Mexico’s acceptance of thousands of non-Mexican nationals that the United States has ordered removed from this country. 

Along with carrots, the border rule uses sticks. Noncitizens at the border who fail to use the CBP One app will be barred from seeking asylum, unless they can show (a) a significant technical failure of the app, such as a crash of the entire system, or a severe language problem; (b) an imminent and extreme threat to life or safety; or (c) proof that they applied for asylum or other humanitarian protection in another country through which they traveled on the way to the United States and received a final denial of that request.

The Conflict Between the Border Rule and the INA’s Asylum Provision

While the agencies’ attempt to manage the border with carrots and sticks is a serious approach to a vexing problem, any attempt to limit asylum must, under 8 U.S.C. § 1158(b)(2)(C), be “consistent with” the INA’s asylum provision. And that’s exactly where Judge Tigar found that the border rule failed to pass muster.

To assess the fit between the border rule and the INA, Tigar applied traditional means of statutory interpretation that the Supreme Court in footnote 9 of 1984’s Chevron USA v. Natural Resources Defense Council termed integral to judicial review of agency action. Tigar focused on tensions between the border rule and the asylum provision’s text, structure, and history (see Justice Brett Kavanaugh’s discussion of this footnote here). Using these familiar tools to aid his inquiry, Tigar found that the border rule exceeded the agencies’ power to limit asylum eligibility.

The Rule and the Text

Under the asylum provision, a noncitizen is eligible to apply for asylum “whether or not [the noncitizen applies] at a designated port of arrival” such as an official border crossing. The text’s liberality on the location of an asylum applicant’s border crossing is no accident. The U.S. Court of Appeals for the Ninth Circuit addressed this statutory language in two decisions, one authored by George W. Bush appointee Jay Bybee in 2018 and the second from 2021—on an asylum limit imposed by then-President Trump. As Judge Bybee found and the second decision confirmed, Congress included this clear language to comply with the UN Refugee Protocol, which the U.S. ratified in 1967, and the UN Convention on Refugees, which the protocol incorporates by reference. These international agreements recognize, as did Congress, that an individual fleeing persecution cannot always choose at her leisure a particular crossing-point into the country in which she seeks refuge. “[I]n most cases,” Bybee commented in the 2018 opinion, the manner of an asylum-seeker’s “entry or presence has nothing to do with” the merits of the individual’s claim of persecution. The asylum provision’s text and history spring from Congress’s express acknowledgment of the relevance of this principle to the United States’s international legal duties.

Following the lead of Bybee and the other Ninth Circuit decision on the policy issued by then-President Trump, Tigar found that the Biden border rule also unduly discounted the asylum provision’s text and history. As the agencies conceded in the rule’s preamble, the Biden border rule “will result in the denial of some asylum claims that otherwise may have been granted.” For example, an applicant who crossed the border without a CBP One appointment and hence was ineligible for asylum under the rule might have a well-founded fear of persecution. Denials of otherwise worthy claims would mount, despite the narrow exception in the border rule for “compelling circumstances” such as an “acute medical emergency” or “imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder.” The medical emergency prong of the exception would be difficult to meet and would in any case be irrelevant to the merits of an applicant’s substantive asylum claim. The exception for an “imminent and extreme threat to life or safety” of the applicant would also arbitrarily cut off asylum eligibility. 

Suppose an applicant waiting for a CBP One appointment faced an imminent threat that was only moderate, not extreme. That moderate threat might concern assault, robbery, or extortion instead of extreme harm such as “rape, kidnapping, torture, or murder.” A rational asylum applicant would seek to enter the United States at an undesignated border-crossing point, rather than risk this imminent but moderate harm. However, under the rule, that person would then be ineligible for asylum. Thus, Tigar found that the rule’s exception did not do enough to close the gap between ordinary, pre-rule asylum adjudication and the cohort of otherwise sound asylum claims that the rule would preclude. 

Tigar invoked statutory structure to point out a major gap in the rule’s exception for applicants who request and receive a final denial of humanitarian protection in a third country—usually Mexico—through which the applicant has traveled on the way to the United States. Here, too, Tigar followed the lead of a Ninth Circuit decision that invalidated a rule issued by the Trump administration. 

To ground its structural analysis, the earlier Ninth Circuit decision had observed that paragraphs within the INA’s asylum provision already preclude asylum eligibility because of an asylum applicant’s stay in another country prior to seeking refuge in the United States. However, unlike the Biden rule, those provisions also included protections for applicants when the applicant’s time in other countries was fleeting or no bilateral agreement between the United States and that country committed each country to full and fair adjudication of asylum claims. According to the Ninth Circuit, these parts of the asylum provision coalesced into a requirement that a stay in a third country such as Mexico had to be a “safe option” to trigger asylum ineligibility. Tigar found that the Biden rule was inconsistent with the asylum provision’s structure, since the rule did not condition asylum ineligibility on a safe option in a third country. 

Some background on these third-country provisions is useful, as I mentioned in a 2020 Lawfare article on the rule issued in the Trump administration. The asylum provision categorically denies asylum to an applicant who has traveled through a country with which the United States has a safe third country agreement. Under 8 U.S.C. § 1158(a)(2)(A), such agreements are formal and public. They must be in writing. In addition, U.S. officials must specifically find that the applicant will not be at risk for persecution in the third country and will receive a “full and fair” hearing on her asylum claim. 

To grasp the care taken in such pacts, consider that, prior to the Trump administration, the United States’ only safe third country agreement was with Canada, a country whose rule-of-law institutions resemble those of the United States. Canada’s top court recently upheld certain changes to the agreement. (The Trump administration signed “asylum cooperative agreements” with Guatemala, Honduras, and El Salvador—countries whose commitment to the rule of law has to date not equaled such commitments in the United States or Canada—but the Biden administration wisely ended those illusory agreements.) According to Tigar, the Biden border rule failed the safe option test because it lacked the safeguards that the INA requires for “safe third” agreements.

Tigar also cited a second third-country part of the INA’s asylum provision, at 8 U.S.C. § 1158(b)(2)(A)(vi), which denies asylum for foreign nationals who have “firmly resettled” in another country. The firm resettlement doctrine also features more robust safeguards for refugees than the Biden border rule. As the Supreme Court observed in Rosenberg v. Yee Chien Woo (1971), the firm resettlement doctrine foregrounds permanence, safety, and stability—attributes that are scarce in Mexico and other third countries through which asylum-seekers travel.

Under the Rosenberg decision, legal protections do not fade due to ethereal prospects of relief in countries that are mere “stops along the way” in the refugee’s flight. Firm resettlement entails a more durable status, in which a country grants the refugee the same “rights and obligations” that it gives its own nationals. The strict test for firm resettlement contrasts with the fleeting contact that renders applicants ineligible for asylum under the Biden border rule. According to Tigar, this lack of fit with the asylum provision’s structure showed that the Biden rule lacked the requisite safe option for refugees and was thus not consistent with that provision. 

The Border Rule and Substantive Review Under the APA

Judge Tigar also found that the border rule was an “arbitrary and capricious” agency action that violated the APA. Citing Justice Kavanaugh’s opinion for the Supreme Court in FCC v. Prometheus Radio Project, Tigar stated that an agency decision has to be “reasonable and reasonably explained.” As Kavanaugh noted, this standard is deferential; the Court should not second-guess agency decisions based on the Court’s own policy preferences. Agency action meets the standard if the agency has “considered the relevant issues” and provided an explanation for its decision that addresses objections in a deliberate and reflective manner. Tigar’s analysis showed that the border rule did not meet this standard, particularly in the preamble’s assessment of the levels of violence that confronted asylum-seekers in transit countries such as Belize, Colombia, and Mexico and the efficiency and fairness of asylum systems in those countries. 

Third-Country Violence and Dysfunctional Asylum Systems

Consider Belize: According to the border rule’s preamble, Belize, along with Mexico and Colombia, had made “significant strides” in building its asylum system and providing protections for asylum-seekers. The preamble based its optimistic outlook on asylum protections in Belize on a publication issued by Belize’s government on an amnesty program for certain immigrants to that country. However, according to the office of the UN High Commissioner for Refugees, which has assisted Belize, the window for completing amnesty applications has closed, meaning that the program will not help future asylum-seekers. Moreover, Judge Tigar described a 2021 U.S. State Department report recounting that migrants in Belize faced the risk of forced labor. Tigar noted similar flaws in the rule preamble’s treatment of conditions and asylum systems in Mexico and Colombia. 

These readily available facts undercut the assertions in the rule’s preamble about the feasibility of asylum in third countries. Documentation of contrary facts in many cases emerges from the U.S. State Department’s own reports. Moreover, the rule’s preamble cites programs in Belize and Colombia that are closed to future applications and therefore offer no help to migrants going forward. The rule’s preamble derides these criticisms of the rule’s premises as mere “generalizations.” However, countering these criticisms requires more than attaching a negative label to the critics’ contentions. In some cases, as Justice Kavanaugh remarked in Prometheus Radio Project, evidence that may appear to cast doubt on an agency initiative is open to interpretation. In that event, a court should not substitute its own “policy judgment” for the agency view. However, interpretation cannot change facts such as publicly announced closing dates for third-country government programs. As Tigar noted, this disparity between the preamble’s claims and ascertainable facts—often those from official sources—fails the reasoned explanation standard. 

Additional Problems With the Rule

Judge Tigar also found that the rule was arbitrary and capricious to the extent that it relied on the CHNV parole program as an alternative for crossing the southern border and claiming asylum. The border rule’s preamble did not explain how the CHNV or related programs were “meaningfully available” when compared with the volume of asylum applications that the agencies themselves had projected as Title 42 ended. For instance, the CHNV program is limited to 30,000 total monthly participants, and enrollees must be able to purchase a plane ticket to the United States from their country of origin, which may be difficult for many impoverished noncitizens. 

Tigar also found serious flaws in the CBP One app. Commenters on the agencies’ proposed rule asserted that the app had gaps in connectivity and failed to account for indigenous languages spoken by many Central American asylum-seekers. Tigar also noted the government’s preamble concession that, even assuming flawless operation of the app, most applicants would have to wait in Mexico for some period of time before getting an appointment scheduled on the app and then before the actual border interview took place. During that time, the government conceded, “the conditions in which such individuals wait may be dangerous.” Here, too, the exception for applicants who could show by a preponderance of the evidence that they faced an “imminent and extreme” threat to life or safety was too narrow to cover the range of dangers that applicants might face. In light of the government’s concessions on this point, Tigar found that reliance on CBP One was also arbitrary and capricious under the APA. 

Finally, Tigar found that the scant 33 days between the agencies’ publication of their proposed rule and the close of the period for public comment also violated the APA. Tigar noted that the proposed rule was lengthy and complex, requiring careful study. The judge viewed the 33 days that the agencies allowed for comments as providing insufficient time to fulfill the APA’s plan for public dialogue between the agency and stakeholders. 

The Court’s Remedy

Based on each of these three findings, Judge Tigar ordered the vacatur of the rule, declaring the rule null and void and without any legally binding effect. Tigar stayed his order to permit the government to appeal to the Ninth Circuit, which the Justice Department has already done. Tigar’s substantive holdings on the INA and the APA, respectively, are solid, although counterarguments are possible for each. His procedural APA holding rests on shakier ground. 

On the INA holding, Tigar’s textual and structural points support his finding. As Judge Bybee and the second Ninth Circuit panel found, it is telling that Congress included express language preserving asylum eligibility for applicants in the United States “whether or not” they crossed at an official point. A structural analysis supports Tigar’s holding on the rule’s requirement that most applicants without a CBP One appointment had to apply for and receive a final denial of humanitarian protection from a third country they had traveled through, such as Belize, Colombia, or Mexico. Congress provided robust safeguards in asylum exceptions based on an applicant’s travel through or stay in third countries. These safeguards would be superfluous if immigration officials could deny asylum based on an applicant’s more fleeting contacts with transit states. The linguistic canon of statutory interpretation that counsels against reading a statutory provision as superfluous, described by Justice Antonin Scalia and Bryan Garner in “Reading Law” reinforces Tigar’s argument. So, too, does the third-country exceptions’ specificity. That specificity should prevail against the generality of the agencies’ power to limit asylum in a manner that is “consistent with” the INA’s asylum provision. In statutory interpretation, specificity usually trumps generality; that maxim should hold here. 

The counterargument is that the maxim disfavoring superfluity also applies to the language giving the government power to make rules that limit asylum. That provision is not an accident. It reflects Congress’s view that a measure of agency discretion over criteria for asylum eligibility would be useful. Even if the third-country condition on asylum eligibility in the new rule does little to save the rule, perhaps the large number of slots available daily through the CBP One app blunts the argument that the rule conflicts with the INA’s asylum provision. 

If the rule does not conflict with the INA, Tigar’s finding that the rule is arbitrary and capricious under the APA assumes even greater importance. Here, Tigar relied heavily on the government’s concession that CBP One users would have to wait in Mexico, often in dangerous conditions. As a counterargument, the government could say that the precise length of the wait is important, since lining up at the border without an appointment can also result in delays and crossing at an undesignated point creates dangers of its own, due to austere topography, severe weather, and unwelcome attention from drug gangs. On this view, the difference between delays and danger that are endemic to the pre-rule status quo and delays and danger that the rule causes is a factual issue that is inappropriate for resolution on a motion for summary judgment, which hinges on the absence of any “genuine issue of material fact” that would require a full trial on the merits. 

While these counterarguments deserve full consideration, on balance Tigar’s substantive findings carry the day. That is good for challengers to the rule, since the APA procedural point is weaker. The 33-day comment period was short for a rule of this length and complexity. Nevertheless, many stakeholders offered comments. Indeed, Tigar relied on the comments heavily. Challengers to the rule did not experience prejudice—a lasting and irremediable legal disadvantage—despite the short comment period. 

Thus, the substantive issues in this case should determine the ultimate outcome. Further word on the future of the rule will await a ruling from the Ninth Circuit, perhaps followed by consideration by the Supreme Court.