A lawyer representing the administration of U.S. President Joe Biden argued to an appeals court that a judge was mistaken in blocking a rule that imposed new restrictions on asylum seekers at the U.S.-Mexico border. The three-judge panel of the 9th U.S. Circuit Court of Appeals in Pasadena, California, heard the government’s appeal of a decision that declared the rule, adopted earlier this year, in violation of federal immigration law. This law explicitly states that crossing the border illegally should not prevent individuals from seeking asylum.
The challenge to the rule was brought by immigrant advocacy groups represented by the American Civil Liberties Union (ACLU). President Biden, a Democrat, took office in 2021 promising to reverse many of the strict policies of the previous Republican administration. However, he has implemented tough border measures as the number of migrants crossing illegally has reached record levels.
The regulation presumes that most migrants are not eligible to apply for asylum if they passed through other nations without seeking protection or if they crossed the border illegally instead of arriving at a designated port of entry. In August, the 9th Circuit put a pause on the judge’s ruling that initially blocked the rule, allowing it to remain in effect while the appeal is ongoing.
During the appeals hearing, Brian Boynton of the U.S. Department of Justice argued that the rule is valid because it includes various exceptions to the presumption that most migrants are ineligible for asylum. Boynton stated that up to September, only 12% of migrants who applied for an exception under the rule had received it.
Spencer Amdur, a lawyer for the ACLU, countered that the vast majority of migrants are being barred from applying for asylum due to the way they entered the U.S., in violation of immigration law. Amdur argued that such a small exception cannot be the determining factor in the legality of the rule. The judges did not reveal their inclinations during the hearing, but two of them noted that federal immigration law gives the government broad discretion to consider relevant factors in deciding who ultimately receives asylum protection.
The discussion during the hearing raised questions about whether the manner of entry can be a factor in deciding whether a migrant can even apply for asylum in the first place. Circuit Judge Lawrence VanDyke suggested that if the manner of entry can be considered in making a final decision on asylum, it makes sense that it could also be a factor in determining whether a migrant can apply in the first place.
Overall, the outcome of the appeal remains uncertain. However, the case has significant implications for the future of asylum seekers at the U.S.-Mexico border. (Reporting by Daniel Wiessner in Albany, New York; editing by Deepa Babington)
