A migrant family waits outside the Movimiento Juventud 2000 Shelter in the border city of Tijuana, Baja California, Mexico. Public concern with the number of asylum seekers at the U.S.-Mexico border has placed incredible political pressure on President Joe Biden to act. (Photo by Carlos Moreno/Sipa USA)(Sipa via AP Images)

Public concern with the number of asylum seekers at the U.S.-Mexico border has placed incredible political pressure on President Joe Biden to act. This is nothing new. Waves of asylum seekers to the United States have regularly caused headaches for presidents from Democrat Jimmy Carter in the 1970s (Vietnamese) to Republican Ronald Reagan in the 1980s (Haitian and Central American) to Democrat Biden in 2023 (Central and South American). If viewed as soft on enforcement, the president runs into a political buzzsaw from the right; if he instead opts for tough enforcement measures, the left will vehemently cry foul. Although international and domestic law requires nations to admit refugees, public opinion is rarely so inclined. When Biden took steps to reduce the number of asylum seekers from south of the U.S.-Mexico border, District Court Judge Jon Tigar in July enjoined the restrictions as unlawful. Although the U.S. Court of Appeals for the Ninth Circuit stayed the injunction, it expedited the appeal. The case is simply the latest battle between the requirements of asylum law and the public’s fear that immigration is out of control.  

The United Nations Protocol Relating to the Status of Refugees, as implemented by Congress in the Refugee Act of 1980, mandates nations to provide asylum to migrants facing persecution due to political opinion, race, religion, nationality, and membership in a particular social group. The international obligation was a response to the tragic refusal of many nations, including the U.S., led by liberal icon Franklin D. Roosevelt, to accept Jewish refugees during the Holocaust. When the public sees large numbers of migrants, even those desperately fleeing uncontrolled violence and persecution, they protest the country’s legal obligations.  

Representing an extreme approach, Donald Trump, with a rhetorical flourish, insulted Mexican immigrants as “criminals” and “rapists” and referred to El Salvador and Haiti as “sh**hole” countries whose nationals should not be permitted to remain in the U.S. even though widespread violence literally has people running for their lives. Consistent with his dehumanizing rhetoric, Trump took immigration enforcement measures unheard of in any other modern administration. The forced separation of migrant parents from their children is perhaps the most chilling example, but other Trumpian immigration and nationality policies, including but not limited to closing the borders in the name of combatting COVID through the Title 42 order, implementing the Remain in Mexico policy requiring desperate asylum seekers to wait across the border while their claims were decided, and promising to end birthright citizenship guaranteed by the Fourteenth Amendment. Immigrant rights groups and pro-immigrant states, including California, filed lawsuit after lawsuit against Trump’s zealous enforcement measures. 

The collision of the fiery politics of immigration and the nation’s legal obligations to refugees collided after Biden took office. He relaxed some of the most onerous and, in some instances, unlawful enforcement measures put into place by the Trump administration. Biden ended the Muslim ban, halted mass workplace immigration raids, and sought to allow new Deferred Action for Childhood Arrivals (DACA) applications for migrants brought to the U.S. as children rather than only allowing DACA renewals. Republican critics repeated charges that the president embraces “open borders,” a catchy criticism but simply wrong. The administration, in turn, responded with efforts to show it is taking measures to control immigration, including the asylum regulation enjoined by Judge Tigar.  

In the face of Biden’s attempt to balance law and public opinion, immigrant rights advocates have expressed disappointment. At the same time, immigration hawks blamed the president and his “open borders” for the many migrants seeking entry at the U.S.-Mexico border. The issue received considerable public attention, especially in May when Biden lifted Trump’s Title 42 order closing the border to migrants. (It is worthy of note that the feared flood of migrants with the end of the order never came to pass.) By so doing, Biden took steps to limit the number of asylum seekers coming and slow what Republicans claimed was an out-of-control immigrant  

For years, administrations have considered reducing the number of eligible asylum seekers by barring applications by migrants who had traveled through third countries to the U.S. without seeking asylum in those countries. Such a measure promised to impact Central American asylum seekers adversely, almost all of whom must travel through Mexico to come here. Earlier this year, the Biden administration, in a final rule (“Circumvention of Lawful Pathways”), made migrants who traveled through a country without seeking asylum before entering the U.S. generally ineligible for asylum. It also barred migrants from applying for asylum if they unlawfully entered the country. East Bay Sanctuary Covenant and other immigrant rights groups sued for a declaration that the rule was unlawful.  

The District Court Enjoins the Biden Asylum Rule  

The basics of the U.S. law of asylum are straightforward. A provision of the U.S. Immigration and Nationality Act (INA), 8 U.S.C. § 1158(a)(1), allows any noncitizen who arrives in the U.S. may apply for asylum “whether or not at a designated port of arrival” and “irrespective of [their immigration] status.” Another provision of INA makes asylum available to those who suffered persecution or establish a “well-founded fear” of future persecution based on race, religion, nationality membership in a particular social group, or political opinion. 

Ruling on these provisions, Judge Tigar held that the Biden asylum policy violated the immigration statute because it renders migrants generally ineligible for asylum if they entered unlawfully outside of ports of entry, even though Congress expressly stated that such considerations should not affect eligibility for asylum and bars migrants from asylum if they failed to apply for protection in any transit country. The Obama appointee reasoned the law clearly stated that failure to apply in another country should only limit access if the third country is a genuine, safe option. Immigrant advocates argue that Mexico is no haven because of widespread kidnapping and violence. In the court’s view, the policy violates the Immigration and Nationality Act because it adds “factors Congress did not intend to affect [asylum] eligibility.” 

The Ninth Circuit Stays Judgment, Expedites Appeal 

The U.S. Court of Appeals for the Ninth Circuit stayed Tigar’s ruling, so Biden’s asylum rule remains in effect during the government’s appeal. However, the Ninth Circuit set an expedited briefing schedule with oral arguments this fall. The court could decide the case by the end of the year, a relatively quick disposition by ordinary standards. 

Judges William Fletcher and Richard Paez, both Bill Clinton appointees, voted to grant the stay. They no doubt understood the strong governmental and public interest in the new restrictive asylum policies remaining in place.   

Judge Lawrence VanDyke, a Trump appointee, offered an idiosyncratic explanation for his dissent. The Ninth Circuit, in his view, had allowed injunctions barring implementation of a variety of President Trump’s immigration policies from going into effect; to VanDyke, the Biden administration’s policy was not “meaningfully different” from the Trump policies that his fellow judges on the panel voted to overturn. He suggested that partisan political bias dictated the stay ruling, stating that he could not shake “the impression that something other than the law is at work here.”  

The Need for Immigration Reform 

The invalidation of the Biden administration’s asylum rule and the stay represents the latest battle in the war between asylum law and public opinion—and more profound questions of immigration policy lurk in the background of the litigation. 

Indeed, asylum is just one of many immigration issues currently facing the U.S. Democrats and Republicans have called for comprehensive immigration reform, at least since the George W. Bush administration. The rationales offered are myriad. Employers have called for reform of the visa system so that more workers can lawfully come to the U.S., which would reduce the incentives for undocumented immigration. Virtually all observers lament the immigration courts’ incredible—and growing—backlog of more than 1.3 million cases. In addition, immigrant rights advocates have stridently criticized the explosive growth in the use—and alleged abuse—of detention of migrants to control immigration.   

One incredibly contentious issue tends to dominate the debate over reform. An estimated 11 million undocumented immigrants live in the U.S., where employers highly value their labor. Undocumented immigrants live in our communities, attend our schools, and pray in our houses of worship. For years, politicians and advocates have pushed for a path to legalization for undocumented immigrants, including the so-called Dreamers, young people who benefited from the relief from removal under Obama’s Deferred Action for Childhood Arrivals (DACA) policy. 

For at least the last five decades, every president has struggled with managing the flow of asylum seekers. President Reagan employed mass detention and other policies directed at Central Americans fleeing civil wars in the 1980s. Among many immigration enforcement initiatives, President Clinton signed into law a prohibition on asylum seekers from securing work authorization for six months after they applied for relief. (That, of course, fails to address how applicants of modest means are expected to survive economically.) Two Attorney Generals under Trump, Jeff Sessions and William Barr, intervened in individual cases to narrow asylum eligibility for women and those who fled gang violence.  

Asylum controversies recur because of the disjunction between the law and the public’s resistance to the admission of significant numbers of refugees, especially when most are people of color. The litigation over the Biden administration’s asylum rule is the latest example of the conflict between the law and public opinion on asylum.  

Like other presidents, Joe Biden is trying to reduce the number of asylum seekers coming to the U.S. and is hoping for the deference the courts have afforded presidents on matters of immigration—for instance, the Supreme Court upholding Trump’s ban on migrants from several majority-Muslim nations. The conflict between asylum law and politics will likely continue. With respect to refugees, the law is clear, and, in the end, the legal challenges to Biden’s restrictive asylum rule may well prevail. 

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Kevin R. Johnson is Dean and Mabie/Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis School of Law.