Title 42 Ruling Impact on Existing Asylum Applicants

A federal judge just blocked a Biden administration rule that allowed border personnel to reject illegal immigrants’ claims of asylum if they did not go through the proper application avenues. According to the judge’s order:

“The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

I agree with this ruling. The Biden administration must follow the existing asylum laws too. However, one effect of this could be an increase in applicants. Unless there is a very large increase in processing capacity, this is going to result in further delays for existing asylum petitioners. Earlier filers will be especially hurt given the policy at USCIS of “Last In First Out” (LIFO) in scheduling asylum interviews.

Yes, mandamus lawsuits can certainly help individuals who are waiting for years for an interview. However, the real fix will have to occur at the system level. The government needs to create a lot more capacity to streamline and process asylum petitions.