Biden administration warns of major disruption at border if judges halt asylum rule

The Biden administration on Tuesday urged an appeals court to allow sweeping new asylum restrictions to stay in place, warning that halting them would be “highly disruptive” at the border.

The government is urging a panel of judges in Pasadena, California — two appointed by President Bill Clinton and one by President Donald Trump — to overturn a July ruling that sought to block the new asylum restrictions. The new restrictions made it far more difficult to qualify for asylum if a migrant didn't first apply online or traveled through another country, such as Mexico, and didn't seek protection there. They have remained in place during the appeal.

Although the judges didn't rule immediately and gave no indication how they were leaning, the arguments occurred against a backdrop of Senate Republicans seeking to legislate far-reaching changes to asylum eligibility as part of President Joe Biden's request for military aid to Ukraine and Israel.

Courts blocked similar measures under Trump but the Biden administration says its approach differs because it is coupled with new legal pathways to enter the country and creates exceptions. However, advocates represented by the American Civil Liberties Union, Center for Gender & Refugee Studies and National Immigrant Justice Center argue that they are recycled Trump-era policies that violate U.S. law allowing people to seek asylum no matter how and where they arrive.

A mobile app introduced in January allows asylum-seekers to make 1,450 appointments per day at official border crossings with Mexico, while the Biden administration has allowed up to 30,000 a month from Cuba, Haiti, Nicaragua and Venezuela to pursue asylum if they apply online with a financial sponsor and arrive at an airport.

Those new pathways represent “a very significant difference" from Trump policies, said Brian Boynton, a Justice Department attorney. Boynton also noted that 12% of the 57,700 asylum-seekers who were subject to the new rule through September avoided it by proving “exceptionally compelling circumstances,” including “acute medical emergency," “imminent and extreme threat to life or safety” or being a victim of human trafficking.

ACLU attorney Spencer Amdur said the exceptions were “tiny" and that the “overwhelming majority” of asylum-seekers had to enter at an official point of entry.

“The one thing they can't do is adopt substantive asylum bars,” Amdur said. “That's not an available option to them.”

Illegal crossings from Mexico dropped from all-time daily highs in early May after the new restrictions took effect, but although arrests haven't returned to 10,000 crossings per day, the lull was short-lived. Arrests in September were just shy of an all-time monthly high reached in December 2022 and they topped 2 million for the second year in a row for the government's budget year that ended Sept. 30.

Blas Nuñez-Neto, assistant Homeland Security secretary for border and immigration policy, said in filing in a separate case last week that the asylum restrictions were critical. Figures show approval rates on initial asylum screenings fell sharply after the new restrictions were put to use.

Boynton asked the judges to keep the policy in place even if they decide against the administration, implying that it was prepared to take the case to the Supreme Court if it lost.