A Ninth Circuit panel, divided in its opinion, paused the vacating of a Biden administration rule that restricted current asylum policy entries. The dissenting judge criticized his colleagues’ decision to block a similar Trump administration rule in the past, citing the confusion in immigration precedents.

The majority of the panel granted the federal government’s request to stay U.S. District Judge Tigar’s order, which deemed the Biden administration’s “Circumvention of Lawful Pathways” rule unlawful. This rule presumed that noncitizens who entered the U.S. between ports of entry or failed to seek protection in a third country were ineligible for asylum.

The district court’s order is paused while the federal government appeals the decision.  An expedited briefing and hearing schedule is set. The opening brief is due later this month, according to the order.

However, one Circuit Court Judge dissented strongly. They point out that the court previously affirmed Judge Tigar’s order enjoining the previous administration’s rule that restricted asylum eligibility for immigrants who entered the U.S. outside a designated port of entry.

The dissenting judge argued that the Biden administration’s “Pathways” rule is not substantially different from previous rules. Judge Tigar, while relying on the Ninth Circuit’s previous rationales in rejecting the Trump administration’s rules, concluded that the Biden administration’s rule was indistinguishable, according to the dissent.

The panel’s decision came shortly after Judge Tigar’s order vacating the Biden administration’s rule. Judge Tigar determined that the rule contradicted congressional intent. Congress made it clear that the manner of entry should not affect access to asylum and that restrictions requiring noncitizens to first 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 acted promptly, filing a notice of appeal just hours later. They also requested an extended emergency stay pending the appeal’s outcome to Judge Tigar. 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 paused, awaiting further legal appeal.

At ILBSG, we actively monitor ongoing updates to immigration policy and legal actions to ensure that our clients receive accurate advice. If you have any questions on immigration-related issues, please feel free to contact us.

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