“2023 is not 2019,” said Erez Reuveni, the Department of Justice lawyer who argued the case.
The rule makes it extremely difficult for migrants who come directly to the southern border to get asylum unless they use a government app to make an appointment or they have already tried to seek protection in a country they passed through on their way to the U.S.
Opponents say it’s essentially a rehash of Trump efforts — a question that gave the online hearing Wednesday a sense of deja vu. The San Francisco-based federal judge who will decide the case, Jon S. Tigar, ruled against the Trump administration’s two attempts to limit asylum.
President Joe Biden’s administration instituted its rule on May 11 with the expiration of a COVID-19 restriction known as Title 42 that had limited asylum seekers at the U.S.-Mexico border. The lawsuit challenging the new rule is being heard as congressional Republicans are attacking the administration for what they say is a failure to control the roughly 2,000-mile (3,220-kilometer) border with Mexico.
The administration argues that its rule encourages migrants to use lawful pathways into the U.S. and prevents chaos at the border. But immigration rights groups suing to get rid of it say it endangers migrants and is illegal.
At the outset of Wednesday’s hearing, Tigar said he would have more questions for the government than the groups trying to stop the asylum rule. He also referenced his history with Trump’s attempts to limit asylum.
“I read somewhere that 2023 would be a good year for sequels,” Tigar told Reuveni as the lawyer prepared to begin his arguments.
Reuveni argued that the Biden rule is different from Trump’s attempts to limit asylum, noting that exceptions are being granted at a rate of 9%.
“This is not a toothless exception,” he said.
Katrina Eiland, an attorney for the American Civil Liberties Union, which is representing the immigrant rights organizations who sued over the Biden rule, argued Wednesday that it violates immigration law that allows people to seek asylum wherever they arrive on the border.
“Thousands of people with valid claims … have been ordered removed and in many cases removed to likely persecution. This rule has consequences,” Eiland said.
Tigar was appointed by President Barack Obama. Trump derided him an “Obama judge” after Tigar rejected a policy barring people from applying for asylum except at an official border entry point. Trump’s remark prompted U.S. Supreme Court Chief Justice John Roberts to weigh in to defend the impartiality of judges.
Tigar also ruled against the Trump administration’s efforts to limit asylum to people who don’t apply for protection in a country they travel through before coming to the U.S. The measure would have applied to children traveling alone, while the Biden rule does not.
The Supreme Court eventually allowed that Trump rule to go into effect. But the one barring people from applying for asylum except at an official border entry point was caught up in litigation and never took effect.
Immigrant rights group say the Biden rule forces migrants to seek protection in countries that don’t have the same robust asylum system and human rights protections as the United States and leaves them in a dangerous limbo. They also argue that the CBP One app that the government wants migrants to use doesn’t have enough appointments and isn’t available in enough languages.
But Reuveni argued that there has been real progress in other countries such as Mexico, Belize and Costa Rica so that migrants can seek protection there.
He also took exception to the criticism of the app and other ways that the administration has used to provide legal pathways to migrants coming into the country. Just recently the government increased daily appointments via the app to 1,450, which is more than 500,000 people a year.
Reuveni noted that a program the government started in January grants parole to as much as 360,000 people a year from four specific countries. Republican-aligned states have their own lawsuit over that program.
All of those measures, Reuveni said, means it’s ”really unfair to suggest that there’s no way to get your foot in the door.”
Reuveni noted that encounters at the southern border have dropped significantly since Title 42 went away and the rule as well as other measures went into place. He emphasized that while this rule isn’t the only reason for the drop, the government does consider it to be a “strong contributing factor.”
Whatever Tigar decides, the case will certainly be appealed.
Reuveni at one point told Tigar that the administration was arguing on the “assumption you’re going to rule against us totally.”
The administration won’t have to wait long to find out.
Tigar estimated he would take a week or less to issue a ruling. He said if he rules against the government, he will honor the administration’s request that such a decision not take effect for 14 days to give it time to appeal.
Follow Santana on Twitter @ruskygal.
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