A federal appeals court panel Thursday approved the Biden administration’s emergency request to keep its asylum restrictions in place on the U.S.-Mexico border while the legal battle over the policy makes its way through the courts.
The 2-1 decision granted a reprieve to the Biden administration, which feared losing a critical border management tool next week.
Newly arrived migrants receive information, snacks, clothing and other items from local nonprofits after being released by U.S. immigration officials at the border crossing in Brownsville, Texas, on July 1. Photo for The Washington Post by Meridith Kohut
Judges William A. Fletcher and Richard A. Paez stayed a lower court’s ruling that would have terminated the asylum restrictions on Aug. 8 as the administration is struggling with rising numbers of migrants arriving at the southern border. The judges said they would consider the appeal on an expedited schedule, at least through September, and possibly longer.
The majority judges did not explain their decision but it inspired a blistering dissent from the third judge on the panel, Lawrence VanDyke, who said the 9th Circuit had shot down Trump administration immigration policies while allowing Biden’s to remain in place.
The 9th Circuit’s decision stayed a ruling by U.S. District Judge Jon S. Tigar. He issued a ruling July 25 saying that the restrictions violate federal law that says anyone fleeing persecution may request asylum once they set foot on U.S. territory. Tigar’s decision was scheduled to take effect Tuesday.
The Biden administration had said that if the restrictions were lifted, it expected a surge of potentially tens of thousands of migrants to the border that would have overwhelmed the immigration system.
“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,” Department of Homeland Security spokeswoman Erin Heeter said in a statement Thursday after the appeals court ruled. “We encourage migrants to ignore the lies of smugglers and use lawful, safe, and orderly pathways.”
The Biden administration imposed temporary limits on migrants seeking asylum in May as it ended a pandemic policy known as Title 42, which had allowed border officials to rapidly expel migrants to Mexico and other countries without a hearing. The restrictions are a mix of incentives and penalties meant to steer migrants away from the border and toward legal pathways into the United States.
The restrictions prevent migrants from seeking asylum if they crossed the southern border illegally or failed to apply for protection in another country, such as Mexico. Migrants must schedule an appointment via an app to request asylum or have a sponsor in the United States invite them into the country. Anyone who does not follow the rules could be deported or face criminal prosecution for entering the country illegally.
In his dissent, VanDyke signaled that it appeared that the appeals court was treating Biden differently from President Donald Trump, who sought to restrict immigration. VanDyke wrote that, in 2018, Tigar blocked the Trump administration from denying asylum to migrants who crossed the southern border illegally and the 9th Circuit refused to stay that decision.
VanDyke wrote that Biden’s asylum restrictions were so similar to the Trump administration’s that it looks like they “got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”
Biden administration lawyers rejected comparisons to the Trump administration, saying they were not barring migrants from requesting asylum.
In their appeal, Biden administration officials said lifting the restrictions would produce a “policy whipsaw” at a time “of enormous uncertainty and upheaval in international migration patterns.”
As of mid-June, more than 100,000 migrants were in northern Mexico within an eight-hour drive of the U.S. border, officials said in the appeal. Once the restrictions are lifted, migrants could attempt to cross and overwhelm the immigration system.
Officials credited the new system for a dramatic drop in border apprehensions. U.S. agents made 99,545 apprehensions along the Mexico border in June, the lowest monthly tally since February 2021.
In July, however, border crossings jumped more than 30 percent, partly because of large groups of migrants from Mexico, Central America and Africa crossing through the deserts in Arizona.
Advocates for immigrants, who filed a legal challenge to the asylum restrictions, disputed the government’s predictions that ending the restrictions would provoke a dramatic increase in migrants crossing the border.
The American Civil Liberties Union and other groups, which had argued against the restrictions in court, said the 9th Circuit’s decision said nothing about the legality of the restrictions.
“We are confident that we will prevail when the court has a full opportunity to consider the claims,” Katrina Eiland, the ACLU lawyer who argued the case, said in a statement. “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.”
Attempted border crossings surged in early May before the Title 42 policy ended, but advocates said that influx was an anomaly triggered by the policy shift. They worried that thousands of migrants were awaiting appointments in dangerous locations, such as border cities in Mexico, where migrants have been targets for kidnapping for ransom and rape.
Federal officials had planned to leave the asylum restrictions in place for two years because the immigration system is overwhelmed, in part because Congress has not updated immigration laws in decades.
For many migrants, seeking asylum is the only way to get into the country. Most migrants do not qualify for that protection, court records show, but the immigration docket is so backlogged that they end up living and working in the United States for years until judges can issue decisions in their cases.
To apply for asylum, a migrant must have a fear that they will face persecution in their native country because of their race, religion, nationality, political opinion or another trait that makes them a target.
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