The fact that we are back to this is… deeply disappointing. Doubly so, since the Democratic candidates promised this would be a “new day” — repudiating Trump’s lawless actions. And that was true for a while. But now, that the time has come to sunset the Title 42 strictures, as we end our COVID emergencies… the administration has taken a deeply mal-informed approach, overall… itself not terribly unlike the measures under Trump that were enjoined in this very same court, in front of this very same USDC Judge, not four years ago.

If we are to lead the world, we must again be “the shining beacon of light, on the hill”. That is, we must scrupulously honor human rights, as set out in our long in force treaty obligations and agreed UN protocols. We must. Here’s the newly amended 57 page complaint tonight — seeking a new injunction:

…[The Biden-proposed rule] is convoluted, but its operation is straightforward: It applies to all non-Mexican asylum seekers at the southern land border and adjacent coastal borders. Id. at 15-16, 326, 438. It requires the automatic denial of an applicant’s asylum claim unless the person satisfies one of three conditions: presenting at a port of entry after securing one of a tightly-restricted number of appointments through a complicated mobile application called CBP One; applying for and being denied asylum in a transit country; or obtaining advance permission to travel to the United States through an approved parole program. Id. at 14, 25-26, 438-49. The Rule contains extremely narrow exceptions to this asylum bar for things like acute medical emergencies. Id. at 15, 439. Like the previous asylum bans, the Rule would bar vulnerable people from asylum for reasons wholly unrelated to the strength or urgency of their need for protection under our laws….

[The proposed rules are] unlawful in numerous ways. The Ninth Circuit has already held that the Rule’s main requirements are illegal. The government cannot force asylum seekers to enter at ports. E. Bay Sanctuary Covenant (“EBSC”) v. Biden, 993 F.3d 640, 658 (9th Cir. 2021) (invalidating prior entry ban). And the government cannot force asylum seekers to apply for asylum in transit countries. EBSC v. Garland, 994 F.3d 962, 982 (9th Cir. 2020) (invalidating the prior transit ban). The Rule revives these illegal requirements by forcing asylum seekers to choose between them, even though neither is consistent with the asylum statute….

In practice, the Rule will function just like the enjoined entry ban, because the Rule’s other requirements are virtually impossible for most asylum seekers to meet. While the prior transit rule was in effect, more than 98% of asylum seekers were unable to satisfy its conditions because of danger and overwhelmed or nonexistent asylum systems in transit countries….

As a result, the Rule will effectively require nearly all covered asylum seekers to enter at a port of entry. Indeed, that’s exactly how the government itself has described the Rule: “[I]ndividuals who unlawfully cross the U.S. southwest border will be presumed ineligible for asylum under new regulations….”

Like its predecessors, this new ban is both inconsistent with Congress’s statutory directive, and arbitrary and capricious, in numerous ways. Among other reasons, it bars asylum based on manner of entry and transit through a third country, which this Court and the Ninth Circuit have already held to be irrelevant, arbitrary bases on which to bar asylum. EBSC v. Trump, 349 F. Supp. 3d 838, 857-59 (N.D. Cal. 2018); EBSC v. Biden, 993 F.3d at 671-72; EBSC v. Barr, 385 F. Supp. 3d 922, 945-46 (N.D. Cal. 2019); EBSC v. Garland, 994 F.3d at 980….

These very same conditions were held unlawful by Judges Tigar, Gee and Sibraw — just over four years ago. Nothing has changed in Congress to sanitize those violations of law. We will keep you posted. Out — Dammit.

नमस्ते