Here's why the Biden administration expects its asylum ban will be struck down

The Department of Justice on Wednesday defended the federal government's new rule that bars most migrants from seeking asylum along the U.S.-Mexico border if they cross the border without authorization.

But attorneys acknowledged that the federal judge in California who struck down two prior asylum bans is likely to do so again.

Attorneys representing six immigration and legal groups sued the U.S. government immediately after the final rule on asylum eligibility took effect on May 11, the same day the U.S. Department of Homeland Security ended implementation of Title 42. The public health rule had allowed the federal government to expel migrants at the border.

The Biden administration’s new rule on asylum bars migrants from seeking asylum in the United States if they do not first seek asylum in a country on their way to the U.S. or pursue one of the “legal pathways” the government unveiled in preparation for the end of Title 42.

Those pathways include a humanitarian parole program for migrants from Cuba, Haiti, Nicaragua and Venezuela, as well as a phone app-based appointment system to process asylum seekers at border ports of entry. The asylum ban also includes exemptions for “exceptionally compelling circumstances,” such as medical emergencies.

“The government can’t pretend that there are several viable options for most people to choose from when that's plainly contradicted by evidence on the record,” Katrina Eiland said. She’s the deputy director for the American Civil Liberties Union’s Immigrant Rights Project, one of the legal advocacy organizations that filed the lawsuit.

Eiland argued Wednesday that the parole program and exemptions are unavailable to most asylum seekers at the border, while the CBP One app has limited slots and many technical issues that have made it difficult for the most vulnerable migrants to access available appointments.

U.S. District Judge Jon Tigar in San Francisco is deciding this case known as East Bay Sanctuary Covenant v. Biden. He struck down two prior transit and entry asylum bans proposed under former President Donald Trump. The new asylum rule implemented in May incorporates elements from the two bans that previously were struck down.

Justice Department attorneys argued that the Biden administration asylum rule strikes an important balance between offering incentives for asylum seekers to apply through legal pathways while delivering consequences to those who do not follow those steps.

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Erez Reuveni, the assistant director for the DOJ litigating the case, told Tigar that doing away with the asylum rule would jeopardize the federal government’s ability to pursue a regional approach to controlling migration flows, saying the rule is intended to shift the burden to other countries as well.

“Setting this rule aside sets aside a core plank of the government’s foreign policy and, potentially as the rule itself lays out, may undermine the ability to continue to negotiate in good faith with partner countries,” Reuveni said.

Mexico, in particular, is playing an important role in implementing the lawful pathways strategy by accepting the return of migrants from Cuba, Haiti, Nicaragua and Venezuela who did not apply for the parole program. Reuveni said getting rid of the rule would put that program at risk.

Seeking asylum: Migrants face restricted asylum access at the Arizona-Mexico border after Title 42 lift

During Wednesday's hearing, Tigar questioned the government’s attorneys more than the legal advocacy groups. His questions focused on the viability of different aspects of the asylum rule, including whether it should stand if the judge strikes down one or more portions.

The rule had contributed to a decrease in the number of apprehensions along the southern U.S. border, Reuveni said and warned that the numbers could increase once again if Tigar struck the rule down.

The week before the new asylum rule took effect in May, migrant encounters had been averaging 9,500 per day, Reuveni said. But in the month after, daily averages had decreased to about 3,300 encounters.

Reuveni added that criticism of the rule as a near total ban on asylum was unwarranted, arguing that the accompanying legal pathways would benefit close to a million migrants each year, including 360,000 migrants admitted to the U.S. under the humanitarian parole program and 500,000 under the CBP One appointments.

“I think it’s really unfair to suggest that there is just no way to get your foot in the door, make an appointment and get interviewed and make your asylum claim,” Reuveni said.

Lives in jeopardy: Asylum rule endangers thousands along US-Mexico border, report says

Eiland countered that the number of asylum seekers frozen out of the system under the new rule was in the thousands. She added that significant human rights concerns also remained for those waiting in Mexican border cities.

A report from the humanitarian group Human Rights Watch published last week found that the asylum rule had stranded thousands of asylum seekers as they waited to make an appointment using the CBP One app, making them targets for kidnappings, sexual assault, forced disappearance and extortion.

The Justice Department argued that the phone app has been working better since it rolled out earlier this year, and that the number of appointments has increased to 1,450 per day. Reuveni added that the safety situation had also improved compared with past years.

But ultimately, the Department of Justice acknowledged Wednesday an uphill battle, anticipating that Tigar would rule in favor of the immigration groups that brought the lawsuit.

Reuveni asked Tigar that if he ruled against the government, to provide a 14-day waiting period for the ruling to take effect to give the government time to prepare and file an appeal before the 9th U.S. Circuit Court of Appeals. The judge agreed, although Eiland dissented and said one week should be enough time.

The latest: June migrant encounters drop to lowest numbers seen in more than 2 years

This article originally appeared on Arizona Republic: Why Biden administration's asylum ban may be struck down in court