“The queue management guidelines in question are currently being reviewed,” Halaska said, adding that revised guidelines are expected within 60 days.
Halaska insisted that the policy was aimed at “preventing operational emergencies” that overwhelm border facilities and create hazards and unsanitary conditions for both immigrants and border guards. “The measurement guidelines are designed to prevent these emergencies before they occur,” he said.
However, an attorney for immigration law group Al Otro Lado said the evidence received since the lawsuit was filed in 2017 showed that the policy was unconditional and applied even when facilities were adequately sized.
“In fact, you have no operational emergencies,” said Stephen Medlock of the Mayer Brown law firm.
Medlock also said the Biden government’s letter of intent should not affect the course of the litigation.
“I don’t think the government’s promise to withdraw these memos should have any effect on this case [intended] to prevent the government from ever doing this again, ”the lawyer said.
Medlock said the central problem with politics is that the executive is imposing restrictions on asylum rights that Congress never did in this way.
“The defendants have exceeded these legally delegated powers by creating false discretion” to refuse asylum seekers, the lawyer said. “You create discretion for CBP officers where there wasn’t. … There is no room for them. “
“Once an asylum seeker arrives in the US, it needs to be inspected and processed,” added Medlock. “An executive agency cannot change a law just because it doesn’t work for them.”
Another immigrant attorney, Baher Azmy of the Center for Constitutional Rights, stressed that the legal obligation not to reject asylum seekers with meritorious claims was rooted in the US shame over a ship, the St. Louis, that had about 900 Jews Refugees from Germany who were refused entry into Cuba, the USA and Canada in 1939. The boat returned to Europe. where more than 200 passengers were eventually killed in the Holocaust.
“This is supposed to prevent the norm and the government is systematically violating this,” said Azmy. “It is one of the most important norms of international law.”
However, the judge said that the question of when and where exactly asylum rights apply remains unclear in much of the world, especially as many countries are facing migration crises on their borders.
“Part of the problem I have is that this is not the only country struggling with the pushback problem, and I’m just not sure it has reached the level of the entire international community, that this is an international norm. I’m struggling with that, ”said Bashant.
Azmy said the norm was accepted by over 240 countries, but the judge said it was not clear that all countries were granting asylum at their borders or avoiding steps to evict asylum seekers from checkpoints.
Bashant appeared to agree with immigration lawyers that the previous use of digit caps – some early versions of which are from the last few months of the Obama administration – violates Congressional statutes that do not impose such restrictions.
“Don’t you have to go to Congress and say, ‘Change this statute. We can’t do that? ’” Asked Bashant Halaska.
“The government has not abandoned its legal obligations,” said the DOJ attorney, noting that immigration authorities processed more asylum seekers each year from 2017 to 2019.
But Bashant, a man appointed by President Barack Obama, said that didn’t reveal much. “That is an abstract number. They don’t know how many have applied for asylum and have not had access, ”she said.
The judge did not issue a verdict on Tuesday but said she would try to do so as soon as possible.
At the moment, the legal debate is largely academic. The Biden administration, much like the Trump administration, relies on a quarantine-related health agency known as Title 42 to squeeze the flow of asylum seekers through official border checkpoints into a trickle.
When the coronavirus pandemic subsides or the Biden administration abandons the health embargo, the question of their other authorities to limit the number of asylum seekers will become more urgent again.