DOJ Appeals Federal Judge’s Ruling Against Key Biden Border Policy

A sign displayed on March 4, 2011 on the Mexican side of the border with the United States as seen in a file photo. (Paco Vega/AFP/Getty Images)

The Department of Justice (DOJ) has appealed a ruling by a federal judge that blocked the Biden administration from continuing some of its immigration policies to curb illegal immigration.

Department of Homeland Security Secretary Alejandro Mayorkas, in a statement after the July 25 ruling by U.S. District Judge Jon Tigar, an appointee of President Barack Obama, said the DOJ would “quickly appeal this decision and seek a stay pending appeal.”

“To be clear, because the district court temporarily stayed its decision, today’s ruling does not change anything immediately,” said Mr. Mayorkas, whose agency oversees U.S. Customs and Border Protection and Immigration and Customs Enforcement. “It does not limit our ability to deliver consequences for unlawful entry. Do not believe the lies of smugglers.”

“The Justice Department disagrees with the district court’s ruling today in the East Bay case and intends to appeal the decision and to seek a stay pending appeal,” a DOJ spokesperson said in a statement to several news outlets. “We remain confident in our position that the Circumvention of Lawful Pathways rule is a lawful exercise of the broad authority granted by the immigration laws.”

But Judge Tigar wrote that he believes the immigration enforcement tool that was implemented by the Biden administration several months ago after Title 42 expired in May is unlawful. The new rule imposes severe limitations on would-be illegal immigrants seeking asylum but includes room for exceptions and doesn’t apply to children traveling alone.

“The Rule—which has been in effect for two months—cannot remain in place,” Judge Tigar wrote in an order that won’t take effect for two weeks.

The American Civil Liberties Union (ACLU) and other groups had argued the rule violates a U.S. law that protects the right to asylum regardless of how a person enters the country. The groups said it forces people to seek protection in countries that don’t have the same robust asylum system and human rights protections as the United States. They also argued that the CBP One app the government wants migrants to use doesn’t have enough appointments and isn’t available in enough languages.

After Judge Tigar’s order, the ACLU and some left-leaning, pro-immigration groups claimed victory.

“The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement. “The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”

Department of Homeland Security Secretary Alejandro Mayorkas testifies before the Senate Homeland Security and Governmental Affairs Committee in Washington on March 28, 2023. (Kevin Dietsch/Getty Images)

The administration had argued that protection systems in other countries that migrants travel through have improved. But Judge Tigar said it isn’t feasible for some migrants to seek protection in a transit country.

“While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors,” he wrote in his ruling (pdf).

The Northern California-based judge also wrote that the rule is illegal because it presumes that people are ineligible for asylum if they enter the country between legal border crossings. But, Judge Tigar added, Congress expressly said that shouldn’t affect whether someone is eligible for asylum.

Several years ago, he similarly 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 United States. The Supreme Court eventually allowed the rule to go into effect.

At the time, then-President Donald Trump described Judge Tigar as an “Obama judge” after he rejected a Trump administration policy barring people from applying for asylum except at an official border entry point. That effort got caught up in litigation and never took effect.

Other Actions

Earlier this week, the DOJ filed a lawsuit against the state of Texas and its governor, Greg Abbott, after his administration installed a floating buoy-based barrier system in the Rio Grande. Mr. Abbott and other top state officials said the structure was set up to deter people from trying to illegally cross the Rio Grande, which they describe as a dangerous affair.

“We allege that Texas has flouted federal law by installing a barrier in the Rio Grande without obtaining the required federal authorization,” U.S. Associate Attorney General Vanita Gupta said on July 24 in a statement about the DOJ’s lawsuit. “This floating barrier poses threats to navigation and public safety and presents humanitarian concerns. Additionally, the presence of the floating barrier has prompted diplomatic protests by Mexico and risks damaging U.S. foreign policy.”

But in a series of Twitter posts this week, Mr. Abbott said that he will defy the DOJ’s requests and responded, “Texas will see you in court, Mr. President.”

The Associated Press contributed to this report.