Appellate Court Greenlights Temporary Continuation of Biden’s Asylum Limitations Amid Legal Dispute

On Thursday, an appellate court authorized the temporary continuation of a regulation that imposes restrictions on asylum at the southern border. This ruling represents a significant victory for the Biden administration, which defended the necessity of the regulation to maintain order at the U.S.-Mexico border.

The newly instituted regulation drastically reduces the likelihood of individuals being granted asylum, unless they have first sought protection in a country they traversed en route to the U.S., or they have applied online. The rule does, however, include certain exceptions and does not pertain to unaccompanied children.

The U.S. 9th Circuit Court of Appeals’ verdict provides an interim relief from a prior lower court ruling that deemed the policy unlawful and directed the government to cease its enforcement by the upcoming Monday. The government promptly turned to the appeals court, petitioning for the policy to remain active while ongoing legal debates over its legitimacy unfold.

The three-member panel voted 2-1 in favor of the government’s appeal, also committing to expedite the hearing process for the appeal. Both parties are anticipated to submit their arguments to the court by mid-September, with a hearing scheduled for an unspecified future date, suggesting a relatively swift resolution of the case.

Judges William Fletcher and Richard Paez, both nominated by President Bill Clinton, favored the stay without providing a reason. Judge Lawrence VanDyke, nominated by President Donald Trump, disagreed. VanDyke appeared to accept the theoretical legality of the rule but noted its similarities to previous rules proposed by the Trump administration, which had been rejected by the same appeals court during Trump’s presidency. He inferred that the judges may have granted the stay out of fear that, if the case reached the Supreme Court, it might have enacted it instead.

VanDyke wrote, “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.”

Implemented in May, the new asylum rule replaced a different policy, Title 42, which had enabled the government to expel migrants swiftly without allowing them to seek asylum, under the guise of protecting Americans from the coronavirus.

The government voiced concerns about a surge in migration to the U.S. post-Title 42, as migrants would then be permitted to seek asylum. The government positioned the new asylum rule as a vital tool to manage migration.

However, human rights organizations sued, arguing that the new rule put migrants at risk by leaving them in northern Mexico while they attempted to secure an appointment via the CBP One app, which the government uses to provide migrants with opportunities to seek asylum at the border. These groups contested that individuals have the right to seek asylum irrespective of how or where they cross the border and criticized the app as flawed. They also asserted that the new asylum rule effectively resurrects two earlier rules proposed by President Donald Trump to limit asylum, mirroring Judge VanDyke’s dissent.

The American Civil Liberties Union, one of these groups, expressed its confidence in its ultimate victory despite Thursday’s ruling, which did not rule on the legality of the asylum rule.

Katrina Eiland from the ACLU, who argued the case, said, “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.”

These groups also suggested that the government is overemphasizing the role of the new rule in managing migration, arguing that with the cessation of Title 42, the U.S. returned to Title 8 processing of migrants, which carries more severe consequences for deported individuals, such as a five-year ban on reentering the U.S. They claim these consequences, rather than the asylum rule, played a more significant role in curtailing migration post-May 11.

They asserted in court briefs, “The government has no evidence that the Rule itself is responsible for the decrease in crossings between ports after Title 42 expired.”

Nevertheless, the government maintained that the rule forms a key part of its immigration policy, which encourages legal immigration and imposes strict consequences on violators. The government underscored the “enormous harms” that would result if it were unable to enforce the rule.

According to the government, “The Rule is of paramount importance to the orderly management of the Nation’s immigration system at the southwest border.”

The government also proposed that it is preferable to uphold the rule while the lawsuit proceeds to avoid a “policy whipsaw,” which would see Homeland Security processing asylum seekers without the rule for a period, only to reinstate it should the government win the case.

On Thursday, the Department of Homeland Security attributed the considerable decrease in irregular migration to the rule, stating, “To be clear, we will continue to apply the rule and immigration consequences for those who do not have a lawful basis to remain in the United States. We encourage migrants to ignore the lies of smugglers and use lawful, safe, and orderly pathways.”

Follow Santana on Twitter @ruskygal for more updates.

Frequently Asked Questions (FAQs) about Asylum Restrictions

More about Asylum Restrictions

• Biden’s Asylum Policies
• American Civil Liberties Union
• U.S. 9th Circuit Court of Appeals
• Title 42
• Title 8 processing