Yesterday, the US Court of Appeals for the Ninth Circuit stayed a district court ruling against a Biden administration policy severely restricting asylum applications by migrants crossing the southern border. The decision is a notable victory for the administration. But it is still only a stay pending appeal, and the government might still end up losing the case on the merits.
The most unusual aspect of the ruling is the alignment of votes. Two liberal judges—Fletcher and Paez—voted to stay the ruling. By contrast, conservative Trump appointee Judge Lawrence VanDyke dissented, arguing that the Biden rule is similar to Trump-era asylum restrictions struck down by the Ninth Circuit, and therefore there is no reason to stay the district court ruling against them.
The majority offered no explanation of its ruling beyond saying that “[t]he motion to stay the district court’s July 25, 2023, order and judgment…. is granted” and citing a Supreme Court case outlining standards for stays pending appeal. But Judge VanDyke wrote a forceful dissent:
My colleagues in today’s majority grant a stay pending appeal of a district judge’s order vacating a recently promulgated immigration rule. Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration’s rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry (the Port of Entry Rule)….
Quickly thereafter, one of my colleagues in today’s majority penned another published, precedential decision again affirming a Judge Tigar decision striking the Trump administration’s rule restricting asylum eligibility for aliens who passed through another country on the way to the United States without seeking asylum in that country (the Transit Rule)….
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. 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. Relying on this court’s rationales in our prior decisions rejecting the Trump administration’s rules, Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He’s right. 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.
Judge VanDyke goes on to say he believes the Ninth Circuit was wrong to rule against the previous Trump policies. But so long as those precedents are on the books, the court must also rule against this very similar Biden policy.
Judge VanDyke is right to highlight the similarity between the two administration’s rules. Although the Biden rule is somewhat less restrictive than the Trump rules were (a point VanDyke should have acknowledged), ultimately both run afoul of the text of the 1980 Refugee Act in much the same way. Judge Tigar’s district court opinion goes into these similarities in detail.
On the other hand, I think VanDyke is wrong to think the rulings against the Trump policies were incorrect. It’s worth noting that one of the key Ninth Circuit decisions against them was written by prominent conservative Judge Jay Bybee. Like Judge Tigar (a Democratic appointee), Bybee noted the incompatibility between these kinds of draconian asylum restrictions and statutory text. That said, Judge VanDyke deserves credit for fairly applying precedents he obviously dislikes. He notes he would “love to join my two colleagues in staying Judge Tigar’s ruling,” but cannot do so, given the Trump-era precedent.
The key question going forward is whether the majority’s decision here prefigures their ruling on the merits. The criteria for a stay pending appeal are vague: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
The fact that one of them is whether the applicant has “made a strong showing that he is likely to succeed on the merits” suggests the majority judges believe the Biden rule is legal. However, it’s also possible they believe a relatively weak showing on this factor was outweighed by a strong one on the other three, particularly the “irreparable injury” prong (this policy is a key component of the Biden Administration’s new border control strategy).
Moreover, in the same ruling the majority also put the case on an expedited briefing schedule. That means a decision will come relatively quickly, and therefore asylum seekers might (in the court’s estimation) suffer relatively little “substantial injury” because they won’t have to wait long.
On the whole, I think there is still a good chance that at least one of the liberal judges will side with the plaintiffs (and with Judge VanDyke, whose dissent telegraphs his position) when the case is heard on the merits. Ultimately, it’s just too difficult to differentiate the Biden policy from the Trump rules those same judges voted to strike down.
I think the liberal judges on the panel will see that, or at least one will. Could I be wrong about that? Of course. We are likely to find out soon enough.