DHS head defends administration’s post-Title 42 asylum ban rules

McALLEN, Texas (Border Report) — Homeland Security Secretary Alejandro Mayorkas on Tuesday afternoon defended the Biden administration’s asylum rules that were put in place after Title 42 to deter illegal immigration across the Southwest border.

His reaction came after a federal judge in California on Tuesday ruled against the new pathways and gave the administration two weeks to revoke the new regulations.

“We strongly disagree with today’s ruling and are confident that the Circumvention of Lawful Pathways rule is lawful. The Department of Justice has said it will quickly appeal this decision and seek a stay pending appeal,” Mayorkas said in a statement. “Today’s ruling does not change anything immediately.  It does not limit our ability to deliver consequences for unlawful entry.”

When Title 42 lifted on May 11, it was replaced by the new regulations that require all asylum-seekers to schedule asylum interviews via the CBP One app. They also must not illegally cross the border, and if they left their homeland, must have claimed asylum in other countries prior to reaching the U.S. border.

Mayorkas on Tuesday afternoon contended those rules are still firmly in place.

“Those who fail to use one of the many lawful pathways we have expanded will be presumed ineligible for asylum and, if they do not have a basis to remain, will be subject to prompt removal, a minimum five-year bar on admission, and potential criminal prosecution for unlawful reentry,” he said.

Migrant encounter numbers in June — after Title 42 was lifted — were reported at the lowest levels since early 2021.

U.S. District Court Judge Jon Tigar ruled the new rules undermine U.S. policy of establishing a safe haven for those fleeing persecution and danger.

“Requiring noncitizens to present at ports of entry effectively [constitutes] a categorical ban on migrants who use a method of entry explicitly authorized by Congress,” Tigar wrote.

Many migrant advocates praised Tigar’s ruling on Tuesday.

“This ruling upholds decades of well-established humanitarian law, and in doing so, protects the legal rights of the most vulnerable families fleeing unthinkable violence and persecution. Restricting the bedrock human right to seek asylum is illegal under Republican and Democratic administrations alike. Whether the barriers are bureaucratic or physically covered in razor-wire, turning our backs on desperate people in dire need is shameful,” Krish O’Mara Vignarajah, president and CEO of the faith-based nonprofit Lutheran Immigration and Refugee Service, said Tuesday.

Kids in Need of Defense President Wendy Young commended the Biden administration’s expansion of in-country processing for refugee resettlement, and new family reunification parole processes put in place in some countries. But Young said it must not come “at the exclusion of, fair access to protection and humane treatment of all who arrive at the U.S. borders.”

“Today’s federal ruling makes clear that the asylum transit ban is bad public policy. We urge the Biden Administration to view this decision as an opportunity to do better rather than implementing approaches that we know place children and families in danger. The asylum transit ban jeopardizes the protection system for asylum seekers, including children and families fleeing for their lives. It’s inconsistent with U.S. and international law and puts children at risk of separation from their families,” Young said.

“Judge Jon Tigar has recognized that all individuals have the legal right to apply for asylum regardless of how they enter U.S. territory,” said Jennifer Babaie, director of advocacy and legal services at Las Americas Immigrant Advocacy Center in El Paso.

“Today’s federal court ruling is a clear affirmation of our moral and legal obligation as a country to honor the right to seek asylum,” said Jane Liu, director of policy and litigation at the Young Center for Immigrant Children’s Rights. “President Biden’s asylum ban has denied this right and forced many children and families into truly horrific and dangerous situations. Families have been left to sleep on the streets along the border after being turned away at ports of entry. To try to seek safety and protection, children and families have been forced to forge through deadly barbed razor wire put in place at the border by Texas officials and endure extreme lacerations on their bodies. Many have been left in the deadly heat without water. The asylum ban is cruel and inhumane.”

“Banning desperate people from seeking asylum is not only cruel and ineffective, it also violates the law,” said Todd Schulte, president of the bipartisan political organization FWD.us.

The organization is pushing for asylum officers to fully adjudicate asylum claims and issuing rulings within one year to reduce the backlog of over 2 million U.S. immigration cases currently pending.

“This ruling presents an opportunity for the Biden administration to pivot and further implement, improve and expand these legal pathways, which are actually yielding positive results,” Schulte said.