East Bay Sanctuary Covenant v. Biden: Challenging Biden's May 2023 Asylum Ban

The National Immigrant Justice Center joined the American Civil Liberties Union, ACLU of Northern California, and Center for Gender & Refugee Studies in filing an amended complaint in East Bay Sanctuary Covenant et al. v. Biden et al., challenging the Biden administration’s asylum ban which took effect in May 2023.

On July 25, Judge Jon Tigar of the U.S. District Court of the Northern District of California blocked the Biden administration’s new asylum ban, but stayed the ruling for 14 days to allow the government the opportunity to ask the Ninth Circuit Court of Appeals for further relief. On August 3, a federal appeals court ordered that the asylum ban could remain in effect as the appeal is heard. In the same order, the court put the appeal on a highly expedited schedule.

The Biden administration ban largely mimics two Trump-era policies — known as the “entry” and “transit” bans — which were previously blocked by federal courts. It prohibits asylum for everyone at the border who transited through another country en route to the United States (i.e., people from countries other than Mexico) except for those who are able to obtain a scarce appointment to present themselves at a border port through a flawed mobile application; the rare person who first sought and was denied asylum in another country; or those who can prove that they qualify for one of a few other extremely narrow exceptions.

The case argues that asylum laws do not allow the administration to restrict access to asylum based on an individual’s manner of entry or whether they applied for asylum elsewhere. It further explains that migrants cannot meaningfully seek asylum in transit countries because many lack a functioning asylum system, others have systems that are stretched to the breaking point, and most are not remotely safe for asylum seekers to find refuge. U.S. courts have recognized these principles in rejecting the previous asylum bans that the new rule tries to combine and re-impose.

The case also cites numerous issues with requiring people to use the flawed CBP One mobile app to secure an appointment to seek asylum, including lack of financial resources to acquire a smartphone, lack of adequate internet access to use the app, technical glitches, language and literacy barriers, and an insufficient number of available appointments. These multiple, compounding barriers to CBP One access will leave many asylum seekers stranded indefinitely in dangerous and life-threatening conditions in Mexico.

Plaintiffs

Plaintiffs in this case are East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center

Timeline

May 11, 2023 - Complaint filed

June 5, 2023 - Plaintiff’s Motion for Summary Judgment filed

July 19, 2023 - Hearing before Judge Tigar on Motion for Summary Judgment

July 25, 2023 - Judge Tigar issues decision vacating Rule. This same day, the Government appealed to the Ninth Circuit and sought a stay of the implementation of Judge Tigar’s decision.

August 3, 2023 - Ninth Circuit granted stay and ordered expedited briefing.

September 7, 2023 - Government filed Opening Brief

October 5, 2023 - Plaintiffs file Responsive Brief

November 7, 2023 - Oral Arguments