Federal judge blocks Biden’s new asylum policy

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A federal judge blocked the Biden administration’s new asylum policy limiting who can come into the country. The rule, which has been in effect since May 12, disqualifies most people from applying for asylum if they have crossed into the United States without either securing an appointment at an official port of entry or proving they sought legal protection in another country along the way.

Immigrant advocacy groups who sued the administration said the policy violated U.S. law and heightened migrants’ vulnerability to extortion and violence during extended waits in Mexican border towns. They also argued it mimicked a Trump administration rule to restrict asylum that had also been struck down by a federal judge in 2019.

Angela Banks, Charles J. Merriam Distinguished Professor of Law at Sandra Day O’Connor College of Law at ASU, discussed what this decision means.

What exactly did the judge rule?

“He ruled that the new policy adopted by the Biden administration was contrary to law,” Banks said.

The U.S. Congress passed The Refugee Act in 1980, which states anybody seeking asylum in the U.S. can seek asylum no matter how or where they enter.

“The Court decided that there was a conflict between this policy and the law that Congress had enacted,” Banks said.

There are three categories granting eligibility to someone seeking asylum:

  • A person is coming into the U.S. based on a parole program
  • A person has a prescheduled appointment to present themselves at the border
  • A person did apply for asylum in another country they traveled through and were denied

Is it common to qualify for these three categories?

“It’s going to be hard,” Banks said. “It’s going to be quite hard, because first of all, the parole programs are only available for individuals from Cuba, Haiti, Venezuela, Nicaragua or Ukraine. So if you’re not from one of those countries, the parole program isn’t even available to you.”

One of the tools being used for a prescheduled appointment is an app, but there have been many glitches and some people are reporting they have not been able to successfully use it to make appointments, according to Banks. Most people are also not applying for asylum in another country.

Angela Banks, Charles J. Merriam Distinguished Professor of Law at Sandra Day O'Connor College of Law at ASU

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