The Biden administration on Thursday won a temporary reprieve in a case challenging the asylum rule that forms the cornerstone of its post-Title 42 border strategy.
A panel on the Ninth Circuit Court of Appeals stayed a federal judge’s order blocking the implementation of the Circumvention of Lawful Pathways rule — which was introduced in May to coincide with the ending of the Title 42 public health order.
The rule bars migrants from claiming asylum if they have crossed illegally into the U.S. and have failed to claim asylum in a country through which they have previously traveled. It formed a central part of the administration’s efforts to stop a new border surge by expanding legal migration avenues and stiffening penalties for illegal entry.
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The order is being challenged in this instance by a coalition of left-wing groups, who are arguing that the order unlawfully restricts the right to seek asylum in the U.S. and that it is similar to a Trump-era transit ban that was struck down years ago. The Biden administration has rejected that comparison, noting the existence of expanded lawful migration pathways and the ability to rebut the “presumption of ineligibility” in certain circumstances.
However, Judge Jon Tigar of the U.S. District Court for the Northern District of California had blocked the rule on July 25, finding it to be “both substantively and procedurally invalid” — but delayed his ruling from taking effect for 14 days to give the administration time to appeal.
The administration appealed the ruling, seeking a stay of the judge’s order as the case is heard in the weeks and months ahead. The two Clinton-appointed judges on the three-person panel approved the stay, while the Trump-appointed judge dissented.
That judge, Judge Lawrence VanDyke, criticized his colleagues for having ruled differently on Trump-era restrictions, which he believes to be extremely similar to the Biden rule.
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“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.” While he said he would “love” to join his colleagues in staying the ruling of Judge Tigar, he says he “cannot so easily ignore our circuit’s binding precedent.”
The Ninth Circuit panel’s ruling will likely blunt some concerns about a fresh migrant wave at the southern border. While overall numbers dropped at the border since the highs before the end of Title 42, there are indications numbers are moving back up.
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The Biden administration warned in its filing to the court that, if the rule is shot down, it “anticipates a return to elevated encounter levels that would place significant strain on DHS components, border communities, and interior cities.”
Meanwhile, the rule is also facing a challenge to the rule from Republican-led states who have argued that it is a “smoke screen” to “define the problem away by re-characterizing what would be illegal crossings as ‘lawful pathways.’”
The administration, meanwhile, has said that the rule and its broader strategy have been working to reduce the chaos at the border.
“Our approach to managing the borders securely and humanely even within our fundamentally broken immigration system is working,” DHS Secretary Alejandro Mayorkas said at a recent House Judiciary Committee hearing.
