A Ninth Circuit panel, with differing opinions, temporarily stopped the reversal of a Biden administration rule that restricted asylum entries. The dissenting judge found issues with his colleagues’ decision to block a similar rule from the Trump administration in the past, citing confusion in immigration precedents.
The majority of the panel granted the federal government’s request to stay U.S. District Judge Tigar’s order. In that order, he found the Biden administration’s “Circumvention of Lawful Pathways” rule unlawful. This rule presumes that noncitizens who entered the U.S. between ports of entry or who fail to seek protection in a third country are ineligible for asylum.
The district court’s order is now paused while the federal government appeals the decision. An expedited briefing and hearing schedule set. The opening brief is due later this month, according to the order.
However, one Circuit Court Judge dissented strongly, pointing out that the court had previously agreed with Judge Tigar’s order that restrained the previous administration’s rule. That rule restricted asylum eligibility for immigrants who entered the U.S. outside a designated port of entry.
The dissenting judge argues that the Biden administration’s “Pathways” rule is not very different from the previous rules. According to the dissent, Judge Tigar relied on the Ninth Circuit’s previous reasoning in rejecting the Trump administration’s rules and concluded that the Biden administration’s rule was essentially the same.
The panel’s decision came shortly after Judge Tigar’s order vacating the Biden administration’s rule. Judge Tigar found that the rule went against congressional intent. Congress made it clear that the manner of entry should not affect access to asylum and that restrictions requiring noncitizens to seek asylum in a transit country applied only if those countries were genuinely safe.
Judge Tigar granted a 14-day stay on his order to allow the government to appeal to the Ninth Circuit. The Justice Department promptly filed a notice of appeal just hours later. They also requested an extended emergency stay to Judge Tigar, pending the appeal’s outcome. However, Judge Tigar rejected the emergency bid to extend the stay.
As a result of the Ninth Circuit Court’s finding, the lower court ruling that the asylum policy program is not valid is currently on hold, awaiting further legal appeal.
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