In a searing dissent, Judge Lawrence VanDyke wrote that the Biden administration’s policy was not “meaningfully different” from Trump administration policies that his fellow judges on the panel voted to overturn.
“The Biden administration’s ‘Pathways Rule’ before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues,” wrote VanDyke, who was appointed by President Donald Trump. “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.”
He accused his colleagues of ignoring the precedent they set by overturning the Trump policies, and appeared to suggest political bias by adding that he could not shake “the impression that something other than the law is at work here.”
In his dissent, Van Dyke took the unusual step of naming Judge Jon Tigar, the appointee of President Barack Obama who issued the injunction against the Biden policy late last month but put his ruling on hold for two weeks to allow the administration to seek a stay. The appeals court judge lauded Tigar’s consistency in blocking both the Biden policy and the Trump administration’s “transit ban” a few years earlier, and criticized the “outcome-oriented mess we’ve made of our immigration precedent.”
“For those who value the rule of law, following precedent, and predictability, one must conclude Judge Tigar had no choice but to vacate the current administration’s Pathways Rule for the reasons that he first provided and my colleagues then established as binding precedent during the Trump administration,” Van Dyke wrote.
When Tigar halted the Biden policy in July, he dismissed the restrictions on asylum as “arbitrary and capricious,” arguing that it was based on outdated and inaccurate assumptions. He also expressed concern about the policy’s requirement that migrants enter the country at legal points of entry, assuming those who enter between points of entry are ineligible for asylum. That assumption, he said, is contrary to policy Congress has set in law.
Justice Department lawyers argued that lifting the policy while litigation proceeds could lead to a new surge of migrants at the border.
The Biden policy generally bars migrants from applying for asylum if they cross the border illegally, or if they do not first apply for safe harbor while traveling through another country before reaching the U.S. It contains some exceptions, including for unaccompanied children, asylum-seekers entering the country at legal points of entry or those escaping “imminent” harm outside of the United States.
The immigrant rights activists who sued to block the Biden policy reiterated their concern about the policy’s effects and their ongoing commitment to fighting it in court.
“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,” said Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case. “The Biden administration should uphold our asylum laws, which were designed to give people a fair chance to seek safety, not ban them arbitrarily despite their need for protection.”
Josh Gerstein contributed to this report.