Biden-Era Limits on Border Asylum Found to Be Partially Unlawful

The former Biden Administration’s rules restricting asylum at the southern border contain elements that are unlawful, a federal district court ruled Friday.

The Refugee and Immigrant Center for Education and Legal Services, Las Americas Immigrant Advocacy Center, and 28 asylum seekers challenged former President Joe Biden’s 2024 “Securing the Border” rules that block off some asylum claims until the level of crossings fall significantly. The rules have remained in effect under the Trump administration.

Aspects of the rules are arbitrary and capricious and are contrary to the Administrative Procedure Act and Immigration and Nationality Act, said Judge Rudolph Contreras in a memorandum opinion for the US District Court for the District of Columbia, granting and denying in part both sides’ cross-motions for summary judgment. These aspects of the rules “must be vacated and remanded to the issuing agencies under the APA,” Contreras said.

"[T]he Court agrees with Plaintiffs that the Rule’s limitation on asylum eligibility violates the INA, that the manifestation of fear requirement is arbitrary and capricious, and that the Guidance’s four-hour consultation window is arbitrary and capricious,” Contreras said. “The Court rejects Plaintiffs’ argument that the reasonable probability screening standard is arbitrary and capricious.”

President Donald Trump’s “Securing Our Borders” executive order shut down the CPB One application and effectively closed the southern border—shutting down asylum processing at the southern border, the judge said. “Plaintiffs—including any who may still be in U.S. custody—will therefore be unable to apply for asylum unless or until that executive order is also set aside or withdrawn, which falls outside the scope of this litigation,” he said.

“The Court will, however, order Defendants to vacate the individual Plaintiffs’ negative credible fear decisions and removal orders,” the judge said.

Biden’s proclamation “generally suspended the entry of noncitizens at the southern border during ‘emergency border circumstances,’ or until the seven-day average of noncitizen ‘encounters’ falls below 1,500 per day,” Contreras said.

“Essentially the proclamation functions as a toggle: if there are over 1,500 border crossings over a certain period of time, virtually every noncitizen who arrives at the southern border cannot apply for asylum,” the judge said. “At the time the proclamation was issued, the 1,500-encounter daily threshold had been continuously exceeded for almost four years.”

The rules require asylum seekers to schedule a “time to appear” for processing at a specific port of entry and to affirmatively manifest a fear of removal on their own accord, the opinion said. The rules also both raise the threshold for a non-citizen to demonstrate eligibility for withholding of removal and shrink the window for them to consult with an attorney before their credible fear interviews to just four hours.

The rules’ ban on asylum for non-citizens who arrive unauthorized during “emergency border circumstances” absent “exceptionally compelling circumstances” violates the INA, Contreras wrote. He said conditioning asylum on a non-citizen’s place of arrival conflicts with the INA in a “noteworthy” and “inharmonious” way.

The manifestation of fear requirement also arbitrarily and capriciously risks different results for identically situated non-citizens, in violation of the APA, the opinion said. Contreras highlighted an example of a non-citizen plaintiff who was separated from her husband—who she shared identical fears of removal with—but was sent back to Colombia while he was allowed to remain.

“This outcome is unsurprising, given that the manifestation of fear requirement has virtually no guardrails to ensure consistency,” Contreras said. “The APA does not demand perfection, but it does require reasonableness.”

The reduced window for non-citizens to speak with counsel is also arbitrary and capricious since the US Department of Homeland Security never considered important fairness considerations the consultation period was meant to protect, Contreras wrote.

Contreras also vacated the removal orders for the 28 individual plaintiffs since those orders were issued, pursuant to a rule that was arbitrary and capricious, the opinion said.

But the heightened threshold for non-citizens to demonstrate their eligibility for withholding of removal was sufficiently rationalized by DHS, the opinion said. Contreras granted DHS’ cross-motion for summary judgment on this rule, holding it adequately addresses the various considerations the plaintiffs raised.

The American Civil Liberties Union Foundation; ACLU of the District of Columbia; Jenner & Block LLP; the National Immigrant Justice Center; the Texas Civil Rights Project; Refugee and Immigrant Center for Education and Legal Services; and the Center for Gender & Refugee Studies represent the plaintiffs.

The case is Las Ams. Immigrant Advocacy Ctr. v. US Dep’t of Homeland Sec., D.D.C., No. 1:24-cv-01702, 5/9/25.