In a blow to the Biden administration’s efforts to control migration across the US-Mexico border, a federal district judge has invalidated the new rule that has successfully reduced unauthorized border crossings from nearly 10,000 per day earlier this year to approximately 3,000 in June. Judge Jon S. Tigar’s ruling stated that the plan violated a statutory provision that allows individuals to seek asylum regardless of where or how they enter the United States, rather than favoring those who make appointments at border stations, as the Biden administration’s plan does. However, the ruling could benefit from a more realistic interpretation of the legal context. While the administration claims that its plan is crucial to effectively enforcing and administering US immigration law, including the asylum system, Judge Tigar only paid superficial attention to these well-founded arguments.
It is true that immigration law permits asylum seekers to apply for protection regardless of whether they arrive at a designated port of entry, such as an airport or border station, and there are legitimate concerns about the feasibility of seeking asylum in third countries, which the administration urges migrants to try first. That being said, a significant number of individuals who could not overcome the administration’s “rebuttable presumption” against asylum applications for most irregular migrants have been left stranded in perilous conditions in Mexico.
Nevertheless, the administration is correct in highlighting the dangers, hardships, and exorbitant costs associated with the journey north in the hands of smugglers. To balance the stricter screening of asylum seekers at the border, the administration proposed a separate expansion of “humanitarian parole,” offering legal entry to 360,000 individuals from Haiti, Nicaragua, Venezuela, and Cuba. The court could have viewed this comprehensive, essentially pro-immigration plan as a set of lawful conditions on the right to asylum, rather than equating it to the significantly more restrictive Trump administration program that Judge Tigar had previously blocked.
Ultimately, what is truly needed is bipartisan legislation that can solidify a solution along the lines of the one adopted by President Biden. Meanwhile, Judge Tigar’s ruling will not take effect for 14 days, allowing the administration time to appeal. The case could potentially reach the Supreme Court. All judges should carefully consider an affidavit submitted to the court by Blas Nuñez-Neto, Assistant Secretary of Homeland Security for Border and Immigration Policy, outlining the real-world consequences of overturning the new rule: overcrowded Customs and Border Patrol facilities, increased risk to noncitizens in custody, overwhelmed border communities unable to provide safe shelter and transportation, and strained systems in interior cities like New York. Such an outcome would be detrimental to everyone’s best interests, and the Biden administration is justified in its continued efforts to prevent it.
Note: The opinions expressed in this piece represent the views of The Post as an institution and have been formulated through debate among members of the Editorial Board, who operate independently from the newsroom. The Editorial Board comprises various members with expertise in different areas, including national and international politics, economics, public policy, technology, and society.
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