Appeals Court Allows Biden Administration Asylum Rule to Stay in Place 

A federal appeals court stayed a lower court’s ruling on Thursday, allowing President Joe Biden’s policy limiting migrants’ ability to seek asylum to stay in place while litigation proceeds.

In a 2-1 decision, Clinton-appointed judges William Fletcher and Richard Paez of the U.S. Court of Appeals for the Ninth Circuit issued the stay and ordered the appeal expedited.

Biden’s policy prohibits some migrants from applying for asylum if they did not first apply for protections from other countries while traveling to the United States. Biden’s policy went into effect on May 12 and was slated to have a two-year lifespan. The president announced this policy after his administration ended Title 42.

Last month, U.S. District Judge Jon S. Tigar struck down Biden’s rule, deeming it “arbitrary and capricious.” Tigar’s ruling would have terminated the asylum rule on August 8 had the appeals court not taken action.

Tigar compared the Biden rule to a similar Trump administration rule he struck down in 2019.

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In his dissent, Judge Lawrence Van Dyke noted the Biden policy is not “meaningfully different” from the Trump rule and suggested political bias was at play because the appeals court previously overturned the Trump administration’s version of the policy.

PHOENIX, ARIZONA - JULY 24: Former U.S. President Donald Trump prepares to speak at the Rally To Protect Our Elections conference on July 24, 2021 in Phoenix, Arizona. The Phoenix-based political organization Turning Point Action hosted former President Donald Trump alongside GOP Arizona candidates who have begun candidacy for government elected roles. (Photo by Brandon Bell/Getty Images)

Former U.S. President Donald Trump. (Brandon Bell/Getty Images)

“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, a Trump appointee. “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.”

“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,” VanDyke wrote. “It’s hard to shake the impression that something other than the law is at work here.”

“I wish I could join the majority in granting a stay. 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,” VanDyke added. “Our own words should bind us with as much force as Odysseus’s ropes did.”

The Case is East Bay Sanctuary Covenant v. Biden, No. 4:18-cv-06810-JST, in the United States District Court for the Northern District of California.

Jordan Dixon-Hamilton is a reporter for Breitbart News. Write to him at or follow him on Twitter.

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