The 9th US Circuit Court of Appeals will allow the Biden administration to carry out a controversial asylum policy while it appeals a lower court’s ruling.
A district court judge had blocked the policy last week but put that ruling on hold for 14 days for a possible appeal. The 9th Circuit on Thursday extended that pause and said it would expedite its consideration of the case.
The controversial policy at the heart of the court battle largely restricts migrants who passed through another country from seeking asylum in the United States, marking a departure from decadeslong protocol. The policy and a similar Trump-era policy have received criticisms from Biden allies, Democrats and immigration advocates.
Circuit Judge Lawrence VanDyke, a Trump appointee, dissented from the appellate panel’s decision.
VanDyke called out members of the panel’s majority, who previously sided with court opponents of the Trump administration who sought to block similar immigration policies.
“The Biden administration’s ‘Pathways Rule’ before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues,” VanDyke said in a pointed dissent. “This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”
VanDyke took unusually sharp swipes at his panel colleagues and accused them ignoring precedent.
“My colleagues, who made all that precedent, should not be able to now just elide it. It’s hard to shake the impression that something other than the law is at work here,” he wrote, adding that he would have liked to have voted in favor of reinstating the asylum policy but that wasn’t “permitted by the outcome-oriented mess we’ve made of our immigration precedent.”
Judge Jon Tigar of the California Northern District Court – whose ruling was set to halt the policy next week – had similarly expressed skepticism that there was any daylight between Biden’s policy and the Trump-era one during a court hearing last month. Tigar had previously ruled against the policy under the Trump administration.
Biden administration officials, however, have rejected the comparison to Trump-era rules.
The administration has rolled out a series of measures to try to stem the flow of migration and manage the situation along the US-Mexico border but is facing multiple lawsuits from Republican states as well as advocates, posing a risk to Biden’s border plans.
The American Civil Liberties Union, which brought the lawsuit alongside other immigrant rights groups, praised the decision in a statement.
“The stay ruling doesn’t say anything about the legality of the ban, and we are confident that we will prevail when the court has a full opportunity to consider the claims,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project. “We are pleased the court placed the appeal on an expedited schedule so that it can be decided quickly, because each day the Biden administration prolongs its efforts to preserve its illegal ban, people fleeing grave danger are put in harm’s way.”
This story has been updated with additional details.