Aug. 3 (UPI) — The administration of President Joe Biden can continue enforcing its strict immigration policy amid litigation, requiring migrants and asylum seekers to apply for refuge prior to arriving at the U.S. southern border, a federal appeals court ruled Thursday.
Under the Circumvention of Lawful Pathway immigration policy, migrants and asylum seekers attempting to enter the country are presumed to be ineligible for asylum if they do not enter the country legally.
That pathway includes requiring applicants to use a smartphone to submit their application and to schedule their arrival at a port of entry. The rule was finalized by the Departments of Homeland Security and Justice in mid-July.
Exceptions for unaccompanied minors and certain non-citizens are permitted.
A three-member panel of the U.S. Court of Appeals for the Ninth Circuit ruled 2-1 that the Biden administration’s immigration policy can stay in place amid the appeal process.
Judge William Fletcher and Judge Richard Paez, both appointees of former President Bill Clinton, voted in favor of the appeal and former President Donald Trump-appointee judge Lawrence VanDyke dissented.
The court also expedited the briefing and hearing process of the appeal, setting the opening brief and excerpts of record due date for Aug. 24, and the answering brief for Sept. 14.
Though no explanation was given for the stay, VanDyke penned a three-page dissent in which he said that while he agrees with the stay he can’t vote in favor of it due to the precedent his court has set by having downed previous Trump administration border policies that appear similar to the one they’ve been asked to consider.
“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 said.
“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. Our own words should bind us with as much force as Odysseus’ ropes did.”
The rule is one of several moves the Biden administration enacted earlier this year in preparation for the expiration of Title 42, which was a COVID-19-era health measure instituted in March 2020 used to rapidly expel more than 2.8 million people prior to its end on May 11.
Biden’s rule was met with opposition from both conservatives for not being strict enough and immigration advocates who said it was illegal, denied refugees asylum and was similar to a previous border policy from the Trump administration.
Last month, U.S. District Judge Jon Tigar blocked the immigration policy, which he said in his ruling was “contrary to law,” “arbitrary and capricious” and “was issued without adequate opportunity for public comment.
But Tigar did put a two-week delay on his ruling to allow the Justice Department to appeal.
