9th Circuit Keeps Biden Asylum Rule In Place, For Now

A divided Ninth Circuit panel last week granted the federal government's request to pause U.S. District Judge Jon S. Tigar's July 25 court order vacating the Biden administration's rule restricting asylum eligibility, titled Circumventing Lawful Pathways.

While the two-judge majority provided no analysis to explain their conclusion that the government made the requisite "Strong showing" that it was likely to succeed in its defense of the rule in the Ninth Circuit, the dissenting judge strongly criticized the majority's decision, saying that "The Biden administration's [rule] is not meaningfully different from the [Trump] administration's rules that were backhanded by my two colleagues."

"Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration's rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry.They did so in a published, precedential opinion, undeterred by a chorus of dissenting colleagues," Judge VanDyke wrote.

The challenge to the Biden administration's asylum rule is a continuation of litigation that began in November 2018 as a challenge to similar asylum restrictions imposed by the Trump administration.

The 2019 IFR was titled Asylum Eligibility and Procedural Modifications and restricted asylum eligibility from illegal border crossers who had either not applied for and been denied asylum or other protection in at least one country en route to the United States or not qualified as victims of human trafficking.

Judge Tigar, relying on the earlier Ninth Circuit precedent set under the Trump administration, concluded in his July 25 decision that the Biden administration's asylum rule was unlawful because, in his view, the policy impermissibly conditioned asylum eligibility on an alien's manner of entry into the United States.

Judge Tigar wrote, "To justify limiting eligibility for asylum based on the expansion of other means of entry or protection is to consider factors Congress did not intend to affect such eligibility. The Rule is therefore arbitrary and capricious." 

https://cis.org/Jacobs/9th-Circuit-Keeps-Biden-Asylum-Rule-Place-Now