A federal judge in Oakland on Tuesday blocked a Biden administration rule that limits migrants’ access to asylum at the southern border, casting doubt on the future of a key policy aimed at limiting crossings. The order from federal Judge Jon S. Tigar, who was appointed by President Obama, won’t take effect for two weeks.

The Biden administration quickly appealed the ruling to the U.S. 9th Circuit Court of Appeals and asked Tigar to stay his order while the higher court considers the matter. If the administration is unsuccessful in the 9th Circuit, it could appeal to the U.S. Supreme Court.

The policy, which restricts access to asylum for migrants who come through a third country on their way to the U.S. without applying for protections, is the centerpiece of the Biden administration’s efforts to reduce the number of migrants crossing without authorization each month. Tigar said Tuesday that the rule was “contrary to law” because it presumed that people who crossed the southern border were ineligible for asylum.

Biden administration officials have said in court declarations that without the policy, border crossings will increase, straining government resources. In June, crossings at the border were at their lowest level in more than two years. Homeland Security Secretary Alejandro N. Mayorkas said in an emailed statement Tuesday that the agency “strongly” disagrees with the ruling and is “confident” that the rule is lawful. “To be clear, because the district court temporarily stayed its decision, today’s ruling does not change anything immediately,” he added. “It does not limit our ability to deliver consequences for unlawful entry. Do not believe the lies of smugglers.”

The rule targets people who enter the U.S. without authorization. Government officials have encouraged migrants to instead use a Customs and Border Protection app called CBP One to schedule an appointment at a port of entry. U.S. officials have also advertised a system that allows migrants from Cuba, Venezuela, Haiti and Nicaragua to apply for entry into the U.S. provided they have a financial sponsor and can pass security checks. Tigar said that applying for asylum on the way to the southern border is not feasible for many migrants.

He added that waiting in Mexico for appointments at a port of entry was similarly difficult. “Because CBP One access is limited to central and northern Mexico, asylum seekers must remain in these areas until they successfully secure an appointment,” he wrote. “The record suggests that migrants waiting in Mexico are at serious risk of violence.” In 2019, Tigar blocked the Trump administration’s version of the policy. The Supreme Court later stayed that order.

Advocates for immigrants have blasted the Biden administration’s asylum limits, labeling them as nothing more than a return to former President Trump’s strict policies. The legal challenge to Biden’s policy was filed by the American Civil Liberties Union, the National Immigrant Justice Center and the UC Hastings Center for Gender and Refugee Studies in May, when the policy went into place.

The groups celebrated Tigar’s ruling on Tuesday. “The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, said in an emailed statement. “The promise of America is to serve as a beacon of freedom and hope,” she added, “and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”

Biden administration officials have said that the policy is intended to discourage unauthorized migration and encourage people to seek alternatives. “As intended, the rule has significantly reduced screen-in rates for noncitizens encountered along the [U.S.-Mexico border],” Blas Nuñez-Neto, a senior Homeland Security official, wrote in the filing. “The decline in encounters at the U.S. border, and entries into the Darién Gap, show that the application of consequences as a result of the rule’s implementation is disincentivizing noncitizens from pursuing irregular migration and incentivizing them to use safe and orderly pathways.” Nuñez-Neto said in the late June declaration that there were 104,000 migrants in northern Mexico and that many appeared to be “waiting to see whether the strengthened consequences associated with the rule’s implementation are real.”

Data from his filing appeared to confirm that the policy had significantly lowered the share of migrants at the southern border who crossed into the U.S. and were allowed to apply for asylum. In their request to stay Tigar’s order pending appeal, government attorneys said that his ruling undermined “efforts taken to prevent an expected increase in encounters at the southwest border following the termination of the Title 42,” referring to the public health measure that allowed border agents to quickly turn away migrants at the border before it was discontinued on May 11.

The policy Tigar deemed unlawful helps prevent a “potentially significant increase in encounters at the southwest border, which would overwhelm the immigration system, incentivize human smuggling, lead to extreme overcrowding in border facilities” and undermine agencies’ ability to manage the immigration system, the government’s attorneys argued.

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EL PASO, Texas (AP) — Francisco Palacios waited for four hours with his wife and 3-year-old daughter at a border crossing between Tijuana and San Diego early Wednesday before going to a nearby hotel for a three-hour nap. They came back, bags packed, only to be disappointed again.

But the family from the western Mexican city of Morelia is prepared to wait for the U.S. Supreme Court to decide whether and when to lift pandemic-era restrictions that have prevented many from seeking asylum, said Palacios.

“We don’t have a choice,” Palacios said in Spanish, explaining that his family arrived in Tijuana two weeks ago to escape violence and gangs that extorted them for years for a chunk of their income selling fruit from a street cart.

They’re among thousands of migrants gathered along the Mexican side of the border, camping outside or packing into shelters as the weather grows colder.

The limits on border crossings had been set to expire Wednesday before conservative-leaning states sought the top court’s help to keep them in place. The Biden administration asked the court to lift the restrictions, but not before Christmas. It’s not clear when the court’s decision will come.

Texas National Guard members took up positions in El Paso at the behest of the state, while volunteers and law enforcement officers worried that some migrants could succumb to the cold. Nighttime temperatures have been in the 30s and will be even colder in coming days. The Roman Catholic Diocese of El Paso, where nighttime temperatures could drop into the 20s this week, planned to open two more shelters for up to 1,000 people at area churches.

Jhorman Morey, a 38-year-old mechanic from Venezuela, warmed his hands by a campfire with a half-dozen other migrants on the southern side of the Rio Grande. He said he was waiting for a decision on the restrictions before attempting to cross into the U.S. Other migrants waded through shallow waters toward a gate in the border fence.

“I want them to decide” on the public health rule known as Title 42, said Morey, who arrived six weeks ago in the Mexican city of Juarez, across the border from El Paso. He now rarely eats after exhausting his savings.

Hundreds of migrants remained in line in Juarez. Others slept along the concrete embankments of the Rio Grande.

As crowds gathered on the riverbanks, 1st Sgt. Suzanne Ringle said one woman went into labor and was assisted by Border Patrol agents. She added that many children were among the crowd.

In Tijuana, an estimated 5,000 migrants were staying in more than 30 shelters and many more renting rooms and apartments. Layered, razor-topped walls rising 30 feet (9 meters) along the border with San Diego make the area daunting for illegal crossings.

A mood of resignation prevailed in Tijuana’s Agape shelter, which housed 560 predominantly Mexican migrants on Wednesday.

Maricruz Martinez, who arrived with her 13-year-old daughter five weeks ago after fleeing violence in Mexico’s Michoacan state, said rumors were rampant that migrants should line up at the border crossing to San Diego Monday.

Albert Rivera, the pastor and shelter director, convened a meeting to tell people migrants that they should only trust official U.S. sources. He convinced most occupants, but said he would like the U.S. government to provide more detailed updates.

A Mexican woman staying at the shelter with her husband and 11-year-old son, who declined to give her name because she is being pursued by a gang, said she fled her village of about 40 homes in Michoacan state after a gang forced her brother to join, killed him, and then burned her house down. The last straw came after the gang forced her 15-year-old son to join them under threat of killing the family and demanded her husband join, sending photos of chopped limbs as a message of the price for resistance.

The woman said the gang took her husband’s refusal as an insult. “They think we are making fun of them for not wanting to join them,” she said, fighting back tears.

The pastor said psychologists had interviewed the woman and he hoped for her to be exempted from Title 42.

A Mexican man who asked that he be identified by his first name, Brian, for safety reasons, said his refusal to join a gang after seven years in the army prompted him to flee his home in Guerrero state with his wife and two sons two months ago. He avoids leaving the shelter except for quick shopping trips.

Brian said he applied for an exemption to the asylum ban.

“Desperate, sad,” he said when describing his thoughts when he learned that Title 42 would be extended beyond Wednesday. “It’s dangerous because you don’t know who could be following you.”

Under Title 42, officials have expelled asylum-seekers inside the United States 2.5 million times, and turned away most people who requested asylum at the border, on grounds of preventing the spread of COVID-19.

Immigration advocates have said the restrictions go against American and international obligations to people fleeing to the U.S. to escape persecution, and that the pretext is outdated as coronavirus treatments improve. They sued to end the use of Title 42; a federal judge sided with them in November and set the Dec. 21 deadline.

Conservative-leaning states appealed to the Supreme Court, warning that an increase in migration would take a toll on public services and cause an “unprecedented calamity” that they said the federal government had no plan to deal with.

In response, Chief Justice John Roberts issued a temporary order to keep the restrictions in place.

The federal government then asked the Supreme Court to reject the states’ effort while also acknowledging that ending the restrictions abruptly will likely lead to “disruption and a temporary increase in unlawful border crossings.”

States filed a response early Wednesday, arguing that letting the restrictions expire while the court reviews the lower court decision would cause “immediate, severe, and irreversible harms” to the states.

Though the Wednesday expiration date was set weeks ago, the U.S. government asked for more time to prepare — while saying that it has sent more resources to the border.

About 23,000 agents are deployed to the southern border, according to the White House. The Biden administration said it has sent more Border Patrol processing coordinators and more surveillance and has increased security at ports of entry.

Should the Supreme Court act before Friday, the government wants the restrictions in place until the end of Dec. 27. If the court acts on Friday or later, the government wants the limits to remain until the second business day following such an order.

Title 42 allows the government to expel asylum-seekers of all nationalities, but it’s disproportionately affected people from countries whose citizens Mexico has agreed to take: Guatemala, Honduras, El Salvador and, more recently, Venezuela, in addition to Mexico.

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SAN DIEGO (AP) — Show up at a border crossing with Mexico and ask a U.S. official for asylum? Sign up online? Go to a U.S. embassy or consulate?

The Biden administration has been conspicuously silent about how migrants who plan to claim should enter the United States when Trump-era limits end, fueling rumors, confusion and doubts about the government’s readiness despite more than two years to prepare.

“I absolutely wish that we had more information to share with folks,” said Kate Clark, senior director for immigration services at Jewish Family Service of San Diego, which has facilitated travel within the United States for more than 110,000 migrants released from custody since October 2018.

Migrants have been denied rights to seek asylum under U.S. and international law 2.5 million times since March 2020 on grounds of preventing COVID-19 under a public-health rule that was scheduled to expire Wednesday until U.S. Supreme Court Chief Justice John Roberts ordered a temporary hold. Title 42 has been applied disproportionately to those from countries that Mexico agrees to take back: Guatemala, Honduras, El Salvador and more recently Venezuela, in addition to Mexico. People from those countries are expected to drive an anticipated increase in asylum claims once the rule is lifted.

Many expect the government to use CBPOne, an online platform for appointment registration that was introduced in 2020. The U.S. Customs and Border Protection mobile app has had limited use for people applying for travel permits and for those tracking U.S. immigration court hearings under the now-defunct “Remain in Mexico” policy.

It’s expected migrants using the app would make appointments to seek asylum in the United States, but would have to remain outside the country until their slotted time and date.

CBPOne, which some advocacy groups oppose over data privacy concerns, may be impractical for migrants without internet access or language skills. The agency also must get the word out.

Nicolas Palazzo, an attorney with Las Americas Immigrant Advocacy Center in El Paso, Texas, said he worries scammers will charge migrants to sign them up and that CBP’s limited processing capacity will result in intolerable waits.

“Unless they plan to ramp that up significantly, someone applying for admission on CBPOne is going to be given a date that is like a year out,” Palazzo said. “Realistically, can they tell me with a straight face that they expect people to wait that long?”

Mohamad Reza Taran, 56, left Iran on Nov. 26 after converting to Christianity and flew to Tijuana, Mexico, where U.S. border inspectors at a San Diego crossing turned him away when he asked for asylum.

The computer technician planned to wait to see if he would get in immediately after Title 42 is lifted and, if not, said he would cross the border illegally, perhaps by climbing the border wall in San Diego or walking across flat desert in Yuma, Arizona. He has family in Los Angeles and sees the United States as his only option.

“I have nothing here,” Taran said in an interview outside a church in Tijuana, where he was searching for people who could instruct him on U.S. policies.

U.S. Rep. Henry Cuellar, a Texas Democrat, said CBP officials told him last week they hoped to funnel asylum-seekers through official crossings and turn back to Mexico anyone who crosses the border illegally to the greatest possible extent. Doing so would likely be challenged in court because asylum law says people who enter illegally are entitled to seek protection.

No one disputes that the Border Patrol is woefully ill-equipped for processing — even while Title 42 kept a lid on numbers.

The Border Patrol paroled nearly 450,000 migrants in the United States through October — including 68,837 in October and 95,191 in September — sparing its agents the time-consuming work of issuing orders to appear in immigration court. According to a Government Accountability Office report, it typically takes at least two hours to prepare a court case, compared to a half-hour to release someone on parole.

Migrants paroled by Border Patrol agents are allowed to move freely within the United States and told to report to an U.S. Immigration and Customs Enforcement offices at their final destinations, typically in two months.

The GAO report, released in September, details how the processing work dumped on ICE has hamstrung employees. As of March, ICE scheduled 15,100 appointments for families to complete processing as far out as March 2024. One ICE office reported up to 500 people a day showing up in person, most without appointments.

After families get a court appearance, they contend with a court system that is backlogged by more than 2 million cases, resulting in waits of several years for judges to reach decisions.

Waiting two years to just get on the court docket reflects a “totally collapsed” system, said Theresa Cardinal Brown, managing director of immigration and cross-border policy for the Bipartisan Policy Center.

Online registration using CBPOne would be “antithetical to the whole concept of asylum” because it could force people to wait in unsafe places, said Melissa Crow, litigation director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.

Crow and others believe CBP could process far more people than they have been.

Earlier this year, the agency processed up to about 1,000 Ukrainians a day at San Diego’s San Ysidro border crossing, about three times its custody capacity.

Since the pandemic, migrants released in San Diego have been housed in motels until leaving, usually on a flight to family and friends east of the Mississippi River, Clark said. To prepare for the end of Title 42, Jewish Family Service opened a building for families to snack, watch television and play in a courtyard after they book travel, freeing up motel rooms for new arrivals. Clark likens it to an “airport lounge.”

CBP has been releasing more migrants to Jewish Family Service through exemptions to the asylum limits — about 200 to 250 a day, Clark said. Others are housed by the Catholic Charities Diocese of San Diego.

“It’s a day we’ve been working toward for some time,” Clark said Monday, having heard nothing from CBP about how migrants will be processed after asylum limits end. She anticipates more releases but doesn’t know how many.

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WASHINGTON (AP) — The Department of Homeland Security said more migrants may be released into the United States to pursue immigration cases when Trump-era asylum restrictions end next week in one of its most detailed assessments ahead of the major policy shift.

The department reported faster processing for migrants in custody on the border, more temporary detention tents, staffing surges and increased criminal prosecutions of smugglers, noting progress on a plan announced in April.

But the seven-page document dated Tuesday included no major structural changes amid unusually large numbers of migrants entering the country. More are expected with the end of Title 42 authority, under which migrants have been denied rights to seek asylum more than 2.5 million times on grounds of preventing spread of COVID-19.

A federal judge in Washington ordered Title 42 to end Dec. 21 but Republican-led states asked an appeals court to keep it in place. The Biden administration has also challenged some aspects of the ruling, though it doesn’t oppose letting the rule lapse next week. The legal back-and-forth could go down to the wire.

Homeland Security Secretary Alejandro Mayorkas traveled this week to El Paso, Texas, which witnessed a large influx Sunday after becoming the busiest corridor for illegal crossings in October. El Paso has been a magnet for Venezuelans, Nicaraguans, Cubans, Colombians, Ecuadoreans and other nationalities.

The geographic shift to Texas’ westernmost reaches was likely a result of smugglers’ calculations on the best route, said Nicolas Palazzo, an attorney at Las Americas Immigrant Advocacy Center in El Paso.

Like other advocacy groups that work directly with directly with Homeland Security, Palazzo said he has had no conversations with the department about post-Title 42 planning. One key question: How will authorities process migrants who have long been waiting to seek asylum?

U.S. Rep. Henry Cuellar, D-Texas, said Customs and Border Protection officials told him Wednesday that about 50,000 migrants are believed to be waiting to cross once Title 42 is lifted.

Authorities plan to admit those seeking asylum who go through ports of entry but return to Mexico those who cross illegally between official crossings, Cuellar said in an interview. It was unclear how they will return nationalities that Mexico won’t accept — like Cubans and Nicaraguans — and are difficult to send home due to strained diplomatic relations and other challenges.

Administration officials are developing additional measures, which Cuellar said they would not disclose.

“I think the first week is going to be a little bit of chaos,” he said.

U.S. officials in El Paso are currently exempting 70 migrants daily from Title 42, said Palazzo, who questioned how officials will handle more people.

Unless they raise processing capacity significantly, migrants who go through official crossings may be told to wait a year or so for an appointment, said Palazzo. “Realistically can they tell me with a straight face that they expect people to wait that long?”

In its latest assessment, CBP said government agencies “have been managing levels well beyond the capacity for which their infrastructure was designed and resourced, meaning additional increases will create further pressure and potential overcrowding in specific locations along the border.”

More single adults and families with young children may be released into communities with instructions to appear in immigration court without help of nongovernmental groups or financial sponsors, the department said.

The department didn’t indicate how many migrants may cross the border when Title 42 ends. Earlier this year, they expected as many as 18,000 a day, a staggering number. In May, migrants were stopped an average of 7,800 times a day, the peak month of Joe Biden’s presidency.

In the fiscal year that ended Sept. 30, migrants were stopped 2.38 million times, up 37% from 1.73 million times the year before. The annual total surpassed 2 million for the first time.

The numbers reflect deteriorating economic and political conditions in some countries, relative strength of the U.S. economy and uneven enforcement of Trump-era asylum restrictions.

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