A federal appeals court said on Thursday that the Biden administration could continue enforcing its tough asylum policy on the southern border for at least several more weeks, while government lawyers appeal a judge’s ruling striking it down.
In May, the Biden administration put in place new rules for asylum seekers that presume most migrants who illegally cross from Mexico are ineligible for asylum. Migrant rights groups sued to stop the policy.
At the end of July, a federal judge called that new policy “contrary to law” because it violated existing federal statutes and international treaties that require the United States to allow anyone crossing the border to request asylum.
“It presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum,” wrote Jon S. Tigar of the U.S. District Court in Northern California.
The judge said in his ruling that the Biden administration must stop enforcing the new policies, but he paused that order for two weeks to give the government time to appeal his decision.
The ruling by the appeals court on Thursday extended the pause, saying the Biden administration should be allowed to continue enforcing its new asylum policy for as long as it takes for the appeals court to make its ruling.
By a vote of 2 to 1, the three-judge panel agreed to expedite its consideration of the government’s appeal and said that briefs from both sides would be due by the end of September at the latest. A hearing will follow.
The two appeals judges in the majority — Judge William Fletcher and Judge Richard Paez — did not explain their reasoning. Judge Lawrence VanDyke wrote that he agreed with their decision but objected because his two colleagues had been harsher when dealing with cases involving former President Donald J. Trump.
In a three-page dissent, Judge VanDyke wrote that the other judges did not give Mr. Trump’s administration the same deference when they were considering several challenges to Mr. Trump’s immigration policies.
The judge said he saw no difference between Mr. Biden’s approach at the border and a similar policy put in place by Mr. Trump, which the appeals court blocked.
“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,” Judge VanDyke wrote.
Michael D. Shear
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