A judge on the Ninth Circuit Court of Appeals, in an extraordinary dissent to a motion related to the Biden administration’s rule limiting asylum, scorched the administration for what he called “collusion” with an immigration activist group to put the rule on ice.
The case involves the Biden administration’s “Circumvention of Lawful Pathways” rule, which the Department of Homeland Security (DHS) announced last year as Title 42 ended. The rule limits asylum claims, barring those who have crossed illegally and failed to claim asylum in a country through which they have already traveled.
The administration said it was a key part of its efforts to control the crisis at the border, but it was soon blocked by a lawsuit by a liberal activist group. The administration then appealed that decision. However, both sides filed an appeal to put it into abeyance pending discussions of a settlement.
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A U.S. Border Patrol agent watches over more than 2,000 migrants at a field processing center on Dec. 18, 2023, in Eagle Pass, Texas. (John Moore/Getty Images)
The Ninth Circuit Court of Appeal panel agreed, but Judge Lawrence VanDyke, a former President Trump appointee, dissented from the decision and tore into the administration’s decision to seek a settlement.
“For months, the rule was so important that ‘any interruption’ in its implementation, even for a short period of time, would incapacitate the executive’s border response. This panel made decisions based on those representations. Now, the government implies the rule isn’t so important after all. Indeed, the government is now ‘engaged in discussions’ that could result in the rule going away. What?”
He said that the move from the Biden administration makes no sense as a legal move and suspects that politics are at play.
“At the very least it looks like the administration and its frenemies on the other side of this case are colluding to avoid playing their politically fraught game during an election year,” he said.
He said that the administration looks like it is “snatching defeat from the jaws of victory — purposely avoiding an ultimate win that would eventually come later this year, whether from this court or from the Supreme Court.”
He also said that the government had given no indication of when the settlement abeyance would end, guessing that sometime after November might eventually be the plan.
He also suggested that the government may be trying to avoid an immigration loss in the courts amid ongoing concerns across the country about the border crisis.
“Placing these proceedings in abeyance avoids the possibility of a loss before the Ninth Circuit that could potentially exacerbate the issues at the border in the months leading up to the election — a loss made even more damaging given that it would be meted out by a panel comprised primarily of Democratic appointees, no less,” he said.
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Secretary Alejandro Mayorkas announced the Circumvention of Lawful Pathways rule last year.
“The CNN headline practically writes itself: ‘Biden Immigration Enforcement Policy Struck Down by Two Clinton Appointees,’” he quipped.
He also floated the idea that the administration “may be seeking to create policy that resonates with its base while blaming the practical results of that policy on the courts.”
“Up until now, we have been repeatedly assured that the rule is critical to the security of the border. But now, astoundingly, the government seeks to abandon its defense of the rule — or at least put that defense on ice until a more politically convenient time,” he said. “Whatever the parties’ real motivations are for seeking to stay this case, they haven’t provided us with a legally sufficient basis for their sudden change of course.”
The criticisms by Judge VanDyke could resurface in the coming weeks. The Biden administration is believed to be considering additional executive action, including an aggressive use of section 212(f) of the Immigration and Nationality Act to stop illegal immigrants coming across the border.
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However, former President Trump attempted to use such a measure in 2018 and was blocked by the courts, a fate that could befall President Biden if he attempts a similar move in 2024.
Fox News Digital has reached out to DHS, the Justice Department and East Bay, the immigration group, for comment.
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