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A federal court of appeals has allowed the Biden administration’s asylum ban to stand - in likely violation of U.S. and international law. 

In May of this year, the Biden administration announced a new policy to turn back migrants at the southern border by making it virtually impossible to apply for asylum. The policy was the administration’s answer to problems posed by lifting the Trump-era, anti-immigrant Title 42 policy.  

Among these policies was a federal rule preemptively denying eligibility for asylum to certain migrants. This asylum ban violates existing U.S. and international law that promises asylum to anyone who comes to the border to seek safety. The administration also proposed more heavily investing in the country’s deportation and detention machines.

Opposing the Asylum Ban

Several Members of Congress, including a dozen Senators, along with 30,000 human rights and faith-based organizations have denounced the asylum ban. A few key groups, including the American Civil Liberties Union (ACLU), Center for Gender & Refugee Studies, and National Immigrant Justice Center (NIJC), also filed a lawsuit against the administration challenging the asylum ban, titled East Bay Sanctuary Covenant v. Biden. 

Efforts to end the asylum ban got off to a promising start on July 25 when Judge Jon Tigar of the U.S. District Court of the Northern District of California decided that this new asylum ban was illegal. Read this fact sheet from NIJC to see the judge’s reasons for the ruling.

However, the good news didn’t last for long. The judge’s decision allowed 14 days for the Biden administration to appeal the decision - and appeal they did.

The Asylum Ban Remains In Effect - For Now

On August 3, within the two-week buffer, the Ninth Circuit Court of Appeals allowed the asylum ban to remain in effect as the appeal is heard. The appeal has been put on an expedited process with filings due this month and September, which could at least limit the possibility for more punitive immigration actions - but only if the court eventually overturns the ban.

For now, the asylum ban is still here, and every day that it is in effect is a day that thousands of asylum seekers are turned away from the border on top of the 2.7 million denials justified under Title 42. Under this ban, asylum seekers have no choice but to return to the very place they left due to violence, or to wait at the border as they try their luck with the unreliable and glitchy CBP One phone app that resembles a lottery for a chance at legal entry to the country. A new lawsuit targets the CBP One app for presenting unreasonable hurdles to request asylum - in order to use the app, migrants fleeing violence and poverty must have a smartphone, a data plan, and access to electricity.

Even for those lucky enough to win the app’s lottery and get an audience with immigration officials, they face the threat of deportation in initial interviews conducted not with lawyers or caseworkers, but detention and deportation officials - an aspect of the process that advocates including some members of Congress have also called to end.

Ending the Rollercoaster Ride for Immigrants

The rollercoaster of court rulings and interference from the administration is representative of the broader U.S. immigration system as a whole: immigrants are in a limbo when it comes to comprehensive immigration reform and permanent pathways to residency and citizenship. 

While programs like TPS and DACA provide widespread relief for immigrants (and I am a benefactor of this), they are temporary policies at the end of the day. Keeping up with court decisions that impact the entire trajectory of immigrant lives and communities – from belonging, to safety, to life goals and ambitions, to simple necessities and joys – can be exhausting. Immigrants are always at the edge of our seats.

I hope the asylum ban federal rule is ultimately vacated at the end of this court process. I’m calling for our country’s leaders to instill transformative and humane immigration policies beyond the enforcement paradigm. Groups like ACLU and NIJC have been powerful in the fight for good immigration policies. Each sign-on letter, each lawsuit, and each court case counts – otherwise, existing punitive measures and violence at the border become the norm. 

It will take everyone to get on the good side of this fight for immigrant communities to win.