East Bay Sanctuary Covenant v. Biden

On Monday, I talked about 2023 developments in asylum border processing, including the new rebuttable presumption of ineligibility for asylum that applies to noncitizens who enter the United States from Mexico at the southwest land border per this final rule. 

Yesterday, Judge Jon S. Tiger of the N.D. Cal. issued an order striking down that rule. (Btw, that link goes to the actual decision, not reporter coverage.) Procedurally, Judge Tiger granted plaintiffs’ motion for summary judgment.

Some highlights:

• Conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress[.] (p.16)
• [INA § 208] permits noncitizens to apply for asylum regardless of whether or not they arrive at a designated port of entry; a rule that conditions eligibility for asylum on presentment at a port of entry conflicts with [that statutory provision]. (p.17)
• As written, the Rule imposes a presumption of ineligibility on asylum seekers who did not apply for or were granted asylum in a transit country regardless of whether that country is a safe option. (p.18)
• Regulations imposing additional conditions on asylum must be consistent with the core principle of the safe-third-country and firm-resettlement bars. This Rule is not. (p.19)
• The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option. (p.19)
• The Rule is arbitrary and capricious for at least two reasons. First, it relies on the availability of other pathways for migration to the United States, which Congress did not intend the agencies to consider in promulgating additional conditions for asylum eligibility. Second, it explains the scope of each exception by reference to the availability of the other exceptions, although the record shows that each exception will be unavailable to many noncitizens subject to the Rule. (p. 20)

The order, it should be noted, is stayed for 14 days. No doubt the government will appeal.

-KitJ