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U.S. Court of Appeals for the Ninth Circuit Court, No. 23-16032
U.S. District Court for the Northern District of California, No. 4:18-cv-06810-JST
What is the government doing and why are we challenging it?
On May 10, 2023, the Biden administration issued a final rule that will bar asylum for the vast majority of people seeking safety at the southwest border. The rule, dubbed an “asylum ban,” combines and repackages two Trump-era policies - known as the “entry” and “transit” bans - which were struck down by the courts as unlawful.
The ban imposes a categorical bar on asylum for anyone who passes through one or more other countries en route to the U.S. border and does not apply for - and get denied - protection in at least one of those countries first. The ban took effect at midnight on May 11, 2023, when the government’s illegal Title 42 expulsion policy was lifted.
There are few extremely narrow and limited situations in which people seeking asylum can avoid the ban:
- People can bypass the ban by obtaining an elusive appointment through the government’s flawed CBP One smartphone app, which has proven inaccessible to the most vulnerable people seeking refuge.
- People from Cuba, Haiti, Nicaragua, Venezuela, and Ukraine can apply for parole.
- People who can prove “exceptionally compelling circumstances,” such as an acute medical emergency, will have to make the case that they qualify for an exemption in an extremely rushed screening, with no access to legal help - making it very unlikely that they will succeed.
- Children seeking asylum alone are not subject to the ban.
Under U.S. and international law, people fleeing persecution have a legal right to seek asylum at our borders, no matter how they cross, no matter what countries they pass through on their way, and whether or not they are able to schedule an advance appointment. That is because our asylum system was designed to protect people fleeing imminent threats to their lives, who cannot afford to wait for an application to be adjudicated in an unsafe country, or for an appointment to materialize if they are lucky. We are arguing that Biden’s ban violates our asylum laws and will result in the unlawful return of bona fide refugees to countries where their lives are in danger.
Whose life is at stake?
Biden’s asylum ban would deny protection to most people seeking safety at the southwest border. The rule applies to anyone who passes through another country on their way to the United States, shutting the door to most people fleeing countries other than Mexico. The countries people travel through en route to the U.S. border are notoriously unsafe for refugees and migrants, particularly Black, Indigenous, and LGBTQ+ people. None have functioning asylum systems with the capacity to process those subject to the ban. Requiring people to apply for protection in one of those countries first is as absurd as it is illegal.
The primary mechanism that allows people to evade that requirement - securing an appointment via CBP One - leaves the most vulnerable people behind. The CBP One app is riddled with glitches and has proven nearly impossible for even the most tech-savvy individuals to navigate. The app is also available only in English, Spanish, and Haitian Creole. It is entirely inaccessible to people who do not speak one of those languages - such as most Indigenous people, and those coming from non-English speaking parts of Africa, Asia, and the Middle East. It is also inaccessible to people without robust literacy skills, and to those without access to a later-model smartphone and a reliable Internet connection. Many have repeatedly tried and failed to book a CBP One appointment for weeks on end, while languishing in precarious conditions in northern Mexico, where people seeking asylum are routinely targets of brutal violence.
What’s the status of this case?
CGRS and our co-counsel filed the legal challenge in the U.S. District Court for the Northern District of California on May 11, 2023, a few hours before the asylum ban took effect.
On July 25, Judge Jon Tigar vacated the rule, finding it unlawful. The Biden administration appealed the decision, and on August 3 the Ninth Circuit granted its request for a stay of Judge Tigar’s ruling, pending resolution of the appeal, and put the case on a highly expedited schedule.
After oral argument the parties filed a joint motion to hold the case in abeyance so that they might attempt to settle the case. On February 21, 2024, the Ninth Circuit issued a published decision granting the motion.
On March 7, 2024, the states of Alabama, Kansas, Georgia, Louisiana, and West Virginia, filed a motion to intervene in the litigation, claiming that they will be harmed if the Rule is vacated, and the ban is lifted. Both the government and plaintiff organizations have filed responses opposing the states’ intervention.
This ban currently remains in effect pending the outcome of settlement negotiations and/or the government’s appeal. The ban currently remains in effect pending resolution of the litigation.
Who’s involved?
CGRS is co-counsel, along with the ACLU Immigrants’ Rights Project, the ACLU of Northern California, and the National Immigrant Justice Center. We represent eight organizational plaintiffs that serve people seeking asylum who would be subject to the ban: East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center.
How can you help?
Take the #WelcomeWithDignity pledge and join our movement to defend the right to seek asylum. You can support CGRS’s vital work on cases like this one by making a donation.
Need more information?
Contact Brianna Krong, Communications and Advocacy Manager, at krongbrianna@uclawsf.edu.
Resources for Advocates
- Attorneys representing clients who may be subject to the asylum ban can request assistance from CGRS through our Technical Assistance Library.
- CGRS’s comment on the proposed version of the asylum ban rule can be read here.
- A report on the shortcomings of the government’s CBP One app can be found here, co-authored by CGRS, Haiti Justice Partnership, Haitian Bridge Alliance, and École Supérieure Catholique de Droit de Jérémie (ESCDROJ).
CGRS’s report on the dangers facing people seeking asylum in common countries of transit can be read here.
