Another federal judge on Tuesday ruled against a Biden administration parole program, the second such ruling in consecutive months.
Last month, a federal judge in Florida ruled an administration’s parole program was illegal; on Tuesday, a federal judge in California ruled similarly but for different reasons.
At issue is a May 16, 2023, DHS and DOJ final rule, “Circumvention of Lawful Pathways,” which among other things established new criteria for admitting asylum seekers into the U.S., partially modeled on a Trump-era strategy.
The rule’s “primary purpose is to incentivize migrants, including those intending to seek asylum, to use lawful, safe, and orderly pathways to enter the United States, or seek asylum or other protection in another country through which they travel,” according to the rule’s preamble published in the Federal Register.
To be eligible, the rule instructs foreign nationals while in Mexico to use a newly created CBP One app. The free mobile application available through Apple App and Google Play stores “enables noncitizens without appropriate documents for admission who seek to travel to the United States through certain southwest border land ports of entry … the ability to submit information through a module within the application instead of coming directly to wait at a POE.”
Within weeks of the rule’s finalization, Texas sued, arguing it facilitated the unlawful release of people into the U.S. who otherwise wouldn’t be eligible for asylum.
On Tuesday, U.S. District Judge Jon Tigar for the Northern District of California held the rule is illegal, but not exactly for the same reasons that Texas argued.
Tigar said the rule is “arbitrary and capricious for at least two reasons. First, it relies on the availability of other pathways for migration to the United States, which Congress did not intend the agencies to consider in promulgating additional conditions for asylum eligibility. Second, it explains the scope of each exception by reference to the availability of the other exceptions, although the record shows that each exception will be unavailable to many noncitizens subject to the Rule.”
He also vacated his ruling to give the Biden administration 14 days to appeal before his order takes effect.
Tigar also took issue with the app, saying it isn’t “meaningfully available to many noncitizens subject to the Rule. Though other parole programs exist, the Rule generally relies on the parole programs for Cuban, Haitian, Nicaraguan, Venezuelan, and Ukrainian nationals. These programs are country-specific and ‘are not universally available, even to the covered populations.’”
The judge is referring to another new parole program created to allow entry into the U.S. among those who otherwise wouldn’t be eligible, to an additional 30,000 Cubans, Haitians, Nicaraguans and Venezuelans each, per month. This is in addition to another new parole program effective this month specifically for Colombians, El Salvadorans, Guatemalans and Hondurans. To facilitate faster entry, the administration opened regional processing centers for the first time in U.S. history outside of the United States.
Tigar wrote the rule’s process to determine eligibility and application for asylum and release into the U.S. is “both substantively and procedurally invalid.”
“To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility.”
The plaintiffs argued many of their clients are illiterate or only marginally literate and would struggle using the app, according to the complaint. They also argued the rule would substantially cut the number of their clients and they would subsequently lose significant amounts of funding.
The judge’s ruling was a win for the plaintiffs who first sued over a similar Trump era policy in 2018. Then, Tigar also ruled in their favor, enjoining the Trump-era rule, granting a temporary restraining order and a preliminary injunction. The Ninth Circuit and U.S. Supreme Court declined to stay his order pending appeal. The Ninth Circuit also held that the Trump era rule was invalid and affirmed Tigar’s ruling.
In this case, East Bay Sanctuary Covenant, Central American Resource Center of Los Angeles, Tahirih Justice Center and others sued the departments of Justice, Homeland Security, Customs and Border Protection, and Immigration and Customs Enforcement and their respective agency heads.
The administration, which is expected to appeal, argues the app has been instrumental in reducing illegal border crossings between ports of entry. When announcing June apprehension data, DHS said, “The CBP One mobile application remains a key component of DHS efforts to incentivize migrants to use lawful and orderly processes and disincentivize attempts at crossing between ports of entry.”
In the first six months of this year, over 170,000 people who scheduled appointments through the app were processed at ports of entry and released into the U.S.
Apprehensions at ports of entry are up 300% from fiscal 2020. Office of Field Operations apprehensions are on track to reach a record of more than 1 million this fiscal year alone.
