Key Biden asylum rule facing mounting legal battles in wake of Title 42’s expiration

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A rule limiting and regulating asylum claims at the southern border, which marks a key element of the Biden administration’s efforts to regulate migrants in the wake of the end of the Title 42 public health order, is facing mounting legal challenges -- with lawsuits from both the left and the right.

The "Circumvention of Lawful Pathways" rule was implemented as Title 42, which had allowed for the rapid expulsion of migrants at the border, ended on May 11. But now both the left-wing American Civil Liberties Union and the Republican Texas attorney general are challenging the rule in separate cases from different perspectives.

The rule presumes migrants to be ineligible for asylum if they have entered illegally and have failed to claim asylum in a country through which they have already traveled. The administration has said it is designed to discourage irregular migration and encourage migrants to use the expanded legal pathways set up.

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US Homeland Security Secretary Alejandro Mayorkas speaks during the daily press briefing in the Brady Press Briefing Room of the White House in Washington, DC, on May 11, 2023.  (BRENDAN SMIALOWSKI/AFP via Getty Images)

That presumption of ineligibility can be challenged if migrants can show exceptional circumstances and officials have rejected comparisons to the Trump-era travel ban. The rule also does not apply to unaccompanied minors. The rule has formed a central cog in the Biden administration’s efforts to tackle a post-Title 42 surge, along with messaging, cooperation with NGOs and Mexico and a stiffening of traditional Title 8 penalties.

"Starting tonight, people who arrive at the border without using a lawful pathway will be presumed ineligible for asylum. We are ready to humanely process and remove people without a legal basis to remain in the U.S.," DHS Secretary Alejandro Mayorkas said in a statement as the public health order expired.

In recent days, the administration has been taking a muted and cautious victory lap as numbers have dropped sharply post-Title 42 by over 70% since the highs of over 10,000 encounters a day before the order expired. However, it is not clear what is causing that drop, and officials have warned against concluding that numbers will remain low.

But the rule has found both criticism and now legal action from both left and right -- raising the distinct possibility the rule could be blocked in the coming months, putting a wrench in the works of the Biden administration’s plans.

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Left-wing groups argue that the rule unlawfully restricts access to asylum. They argue that migrants should still be able to claim asylum in the U.S. even if they enter illegally between ports of entry, and if they have traveled through multiple countries to get to the U.S. They also objected to a requirement for migrants to schedule an appointment at a port of entry on the CBP One app, noting that such appointments are limited to approximately 1,000 a day. 

"The Biden administration’s new ban places vulnerable asylum seekers in grave danger and violates U.S. asylum laws. We’ve been down this road before with Trump," Katrina Eiland, managing attorney with the ACLU Immigrants’ Rights Project, said in a statement announcing the filing of its suit. "The asylum bans were cruel and illegal then, and nothing has changed now."

Days later, Texas Attorney General Ken Paxton filed a lawsuit challenging the rule, focusing on the use of the CBP One app to allow migrants into the U.S.

"In a farcical attempt to address the invasion of illegal aliens across the southern border following the end of Title 42, the Biden Administration published a new Final Rule inviting migrants to download an app to schedule a convenient time and place to cross the border illegally," the lawsuit, first reported by Fox News Digital, says.

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Paxton accused the administration of having an aim of "illegally pre-approving more foreign aliens to enter the country and go where they please once they arrive."

The complaint says that neither the app nor CBP officials ask if migrants are seeking asylum. It claims that the administration is encouraging migrants to cross the border "without establishing that they meet some exception from removal or have a legal basis to remain in the country." Texas argues that by inviting migrants into the U.S., Texas will be hit by extra costs for education, health care and other services. 

"The Biden Administration’s attempt to manage the southern border by app does not meet even the lowest expectation of competency and runs afoul of the laws Congress passed to regulate immigration, and the Final Rule should be enjoined," it says.

The challenges mark the latest in a long line of legal efforts that have either challenged or torpedoed a number of Biden-era immigration policies. Title 42 itself had also faced a legal back-and-forth as activists sought to end the rule, while Republican-led states sought to keep it in place. The battle went right up to the Supreme Court, but was dismissed as the expiration of the order with the end of the COVID-19 national emergency meant it expired on its own terms.

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Meanwhile, a "parole with conditions" policy that was introduced to relieve overcrowding on May 10 and allowed for migrants to be released into the U.S. without court dates has been blocked in response to a lawsuit from Florida. The case, which is separate from another lawsuit filed against the same policy by Texas, is ongoing.