“The queuing management policies involved are under review,” said Halaska, adding that revised guidelines are expected within 60 days.
Halaska insisted the policies were designed to “prevent operational emergencies” that overwhelm border facilities, creating dangers and unsanitary conditions for immigrants and border officials. “Counting policies aim to prevent these emergencies before they happen,” he said.
However, an attorney for immigrant rights group Al Otro Lado said evidence obtained since the complaint was filed in 2017 showed the policy was unrelated to the requirements and applied even when the facilities had adequate facilities. enough space.
“In fact, there is no operational emergency in the file before you,” said Stephen Medlock of law firm Mayer Brown.
Medlock also said the Biden administration’s statement of intent should not affect the course of the litigation.
“I don’t think the government’s commitment to withdraw these memos should have any effect in this case. [intended] to prevent the government from starting over, ”the lawyer said.
Medlock said the central problem with the policy is that it is up to the executive branch to impose limits on asylum rights that Congress has never restricted in this way.
“The defendants have exceeded these powers delegated by law by creating a false discretion” to refuse asylum seekers, said the lawyer. “They create discretion for CBP officers where none existed. … There is no room for maneuver for them.
“Once an asylum seeker is about to arrive in the United States, they must be inspected and treated,” added Medlock. “An executive branch is not allowed to change a law just because it doesn’t work for them. “
Another immigrant lawyer, Baher Azmy of the Center for Constitutional Rights, pointed out that the legal obligation not to turn back asylum seekers with meritorious claims is rooted in the United States’ shame for a ship, the St Louis, which was filled with around 900 Jewish refugees from Germany who were refused permission to dock in Cuba, the United States and Canada in 1939. The ship returned to Europe. where more than 200 passengers were ultimately killed in the Holocaust.
“This is what the standard is designed to prevent and what the government is systematically violating here,” Azmy said. “It is one of the most important standards in international law.
However, the judge said the question of precisely when and where asylum rights attach remains unclear in much of the world, especially as many countries face migration crises at their borders.
“Part of the problem I have is that it is not the only country that is grappling with the problem of refoulement, and I am just not sure that it has reached the level of the entire international community that agrees that this is an international standard. I have a hard time with that, ”Bashant said.
Azmy said the standard has been accepted by more than 240 countries, but the judge said it was not clear that all countries grant asylum at their borders or avoid measures to remove asylum seekers. checkpoints.
Bashant appeared to agree with immigrant rights advocates that the earlier use of digital caps – some of the earliest versions of which date from the last few months of the Obama administration – contravenes statutes written by Congress that do not impose such limits.
“Don’t you have to go to Congress and say, ‘Change this status’. Can’t we comply? ‘ Bashant asked Halaska.
“The government has not abandoned its statutory obligations,” the DOJ lawyer said, noting that immigration officials processed more asylum seekers each year from 2017 to 2019.
But Bashant, a person appointed by President Barack Obama, said that didn’t reveal much. “It’s an abstract number. You don’t know how many have applied for asylum and have not been given it, ”she said.
The judge made no ruling on Tuesday, but said she would try to do so as soon as possible.
For the moment, the legal debate is largely academic. The Biden administration, much like the Trump administration, is relying on a quarantine-related health authority known as Title 42 to reduce the flow of asylum seekers through official border checkpoints.
When and if the coronavirus pandemic subsides or the Biden administration abandons the health embargo, the question of its other authorities to limit the number of asylum seekers will once again become more urgent.