Migrants wait throughout the night on May 10, 2023, in a dust storm at Gate 42, on land between the Rio Grande and the border wall, hoping they will be processed by immigration authorities before the expiration of Title 42. (Photo by Corrie Boudreaux for Source NM)
WASHINGTON — A federal appeals court on Thursday decided to allow the Biden administration to keep in place a temporary two-year rule that restricts asylum at the U.S. border, while the legal challenges to a lower court’s ruling play out.
The decision from the 9th U.S. Circuit Court of Appeals aids the Biden administration, which argued that the rule is needed as an immigration enforcement policy after the end of Title 42. That pandemic-era tool was used by the administration to bar migrants from claiming asylum and to quickly expel them.
Thursday’s order was a 2-1 decision by Judges William Fletcher and Richard Paez, who ruled in favor of the stay — both appointed by President Bill Clinton — and Judge Lawrence VanDyke, who was appointed by President Donald Trump, dissenting.
The order also expedites a hearing on the Biden administration rule, with both sides expected to send their arguments to the court by Sept. 14. A date for the hearing has not been scheduled yet.
Fletcher and Paez did not give any reasoning for their decision, but VanDyke in his dissent argued that the rule seemed similar to a Trump-era rule that was also struck down by the same appeals court.
“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,” he wrote. “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.”
Under the Biden administration’s rule, in order for migrants to claim asylum in the U.S., they would first have to schedule an appointment at a U.S. port of entry and apply for a legal pathway in the country they traveled through.
The number of asylum cases is at a historic high, with more than 1.5 million pending, according to the Transactional Records Access Clearinghouse at Syracuse University.
Once the rule went in place, it was quickly challenged by civil rights groups and immigration advocates, who argued that it mirrored a Trump-era immigration policy that was a near-total ban on asylum.
In late July, a federal judge blocked the Biden rule on the grounds that it violated federal law that allows for anyone to claim asylum on U.S. soil. That same judge also struck down the Trump-era rule that banned asylum.
Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case, praised the decision from the appeals court.
“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,” Eiland 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.”
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