Appeals court reinstates Biden administration's migrant policy

August 7, 2023

The Biden administration won a legal victory late last week after an appeals court determined in a two to one decision that a migrant policy known as the "Pathways Rule" can remain in effect. 

According to Breitbart, that decision came from the U.S. Court of Appeals for the Ninth Circuit and concerned a rule requiring those seeking asylum to have first applied to stay in another country before making their way to the U.S.

Rule can remain in effect during litigation

While the requirement was struck down by U.S. District Judge Jon S. Tigar last month, this latest ruling allows it to remain in effect while the case is being litigated.

While Clinton-appointed Judges William Fletcher and Richard Paez both sided with the Biden administration, Trump-appointed Judge Lawrence Van Dyke registered his disagreement.

Specifically, Dyke took issue with Fletcher and Paez decision to let the Biden administration's policy to stand given that they had previously found former President Donald Trump's "Remain in Mexico" policy to be unlawful.

"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," VanDyke wrote in his dissent.

"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," the judge continued.

"Something other than the law is at work here"

"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," VanDyke continued.

"My colleagues, who made all that precedent, should not be able to now just elide it. It's hard to shake the impression that something other than the law is at work here," he noted.

"I wish I could join the majority in granting a stay," the federal judge went on to lament, adding, "It is the right result."

"But that result, right as it may be, isn’t permitted by the outcome-oriented mess we’ve made of our immigration precedent. Our own words should bind us with as much force as Odysseus’s ropes did," he concluded.

Administration "strongly" disagreed with earlier ruling

Last week's ruling will come as welcome news to the Biden administration, which had previously criticized Judge Tigar's decision.

"We strongly disagree with today’s ruling and are confident that the Circumvention of Lawful Pathways rule is lawful," Breitbart quoted Department of Homeland Security Secretary Alejandro Mayorkas as saying.

"The Department of Justice has said it will quickly appeal this decision and seek a stay pending appeal," Mayorkas went on to add.

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