Appeals Court Allows Biden Asylum Policy to Remain in Place

Asylum-seeking illegal immigrants sit by concertina wire fence while waiting to be transported by U.S. law enforcement officers after crossing the Rio Grande river into the U.S. from Mexico in Eagle Pass, Texas, on July 24, 2023. (Go Nakamura/Reuters)

A U.S. appeals court on Aug. 3 decided that a Biden administration regulation for people seeking asylum at the U.S.–Mexico border can remain in effect for now.

The 9th U.S. Circuit Court of Appeals, based in San Francisco, voted 2-1 to put a temporary stay on a ruling by a district court judge.

The district court judge—Jon Tigar, an Obama appointee—on July 25 found the Biden administration, by cutting off asylum for some illegal border crossers, had violated federal law and international treaties that require the United States to allow anyone crossing the U.S.–Mexico border to request asylum.

The judge had stayed his injunction of the asylum policy for 14 days to allow for a possible appeal, which the Biden administration pursued quickly.

The 9th Circuit said on Aug. 3 that the Biden administration can implement the asylum restrictions pending the outcome of the appeal.

The three-judge appellate panel added it would expedite the consideration of the case, with both sides expected to send in their arguments to the court by mid-September and a hearing to be held at an unspecified date.

The Biden administration had argued that its policy was integral to its efforts to maintain order along the U.S.-Mexico border.

Migrants wait near a facility that processes asylum claims in Tapachula, Mexico, on June 24, 2019. (Charlotte Cuthbertson/The Epoch Times)

Groups Challenge Asylum Policy

The new regulation, which took effect on May 11, denies asylum to illegal immigrants in the United States if they passed through another country without seeking protection there first or if they failed to use other legal pathways to the United States, including by applying online via a government app called CBP One.

The policy does not apply to children traveling alone. It also has some other exceptions.

The American Civil Liberties Union (ACLU) and other groups challenged the Biden regulation, arguing that the asylum policy unlawfully denies asylum to some illegal border crossers. The groups argued that people are allowed to seek asylum regardless of where or how they cross the border.

They also argued that the Biden administration’s asylum rule mirrored two previous rules that sought to limit asylum put forward by former President Donald Trump. Those two rules were previously also blocked in court. Judge Tigar had previously ruled against the previous Trump policies.

They also argued that the CBP One government app is faulty and that the migrants are being endangered by being left in northern Mexico as they wait to secure an appointment on the app, which grants migrants a chance to come to the border and seek asylum.

The groups have furthermore argued that the Biden administration is overestimating the importance of the new rule in controlling migration. They said that when the United States ended the use of Title 42 on May 11, it transitioned to Title 8 immigration law, which has much stronger repercussions. Under Title 8, illegal border crosses can be “expeditiously removed” and banned from entering the United States for five years. Those consequences—not the new asylum rule—were more important in stemming migration after May 11, the groups argue.

Migrants seeking asylum wait for U.S. Customs and Border Protection agents to allow them to enter the United States at the San Ysidro crossing port on the U.S.-Mexico border, as seen from Tijuana, Baja California state, Mexico on May 31, 2023. (Guillermo Arias/AFP via Getty Images)

Trump Appointee Dissented

Circuit Judge Lawrence VanDyke, a Trump appointee on the panel, dissented from the panel’s decision and criticized his two colleagues for keeping President Joe Biden’s border policy in place even though the 9th Circuit ruled against the similar Trump-era policies years earlier.

“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,” Judge VanDyke said in his 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,” he said.

“I wish I could join the majority in granting a stay. It is the right result. But that result, right as it may be, isn’t permitted by the outcome-oriented mess we’ve made of our immigration precedent,” Judge VanDyke added, noting, “It’s hard to shake the impression that something other than the law is at work here.”

The other two on the panel—Judges William Fletcher and Richard Paez, both appointees of President Bill Clinton—didn’t issue an explanation of their decision. They only briefly referred to the court’s standards for stays pending appeal.

The ACLU could choose to appeal the latest ruling to the U.S. Supreme Court, where conservative-leaning justices outnumber liberal-leaning ones by 6-3.

Reuters and The Associated Press contributed to this report.