A dissenting judge on the Ninth Circuit Court of Appeals criticized the Biden administration for seeking to put on hold its rule limiting asylum claims through settlements with an immigrant activist group.
The judge, Lawrence VanDyke, accused the administration of “collusion” with the group to avoid playing out the politically fraught legal battle during an election year.
He argued the administration had previously stressed the rule’s importance to border security but now seemed willing to abandon it for political reasons.
“For months, the rule was so important that ‘any interruption’ in its implementation, even for a short period of time, would incapacitate the executive’s border response. This panel made decisions based on those representations. Now, the government implies the rule isn’t so important after all. Indeed, the government is now ‘engaged in discussions’ that could result in the rule going away. What?” Judge Lawrence VanDyke said.
“At the very least it looks like the administration and its frenemies on the other side of this case are colluding to avoid playing their politically fraught game during an election year,” he said.
VanDyke suggested the administration may be trying to dodge an unfavorable ruling from the generally liberal Ninth Circuit before the midterms.
He said the discussions to potentially end the rule through settlement provided no legally sufficient basis and appeared aimed at avoiding exacerbating border issues in the news before elections.
“Placing these proceedings in abeyance avoids the possibility of a loss before the Ninth Circuit that could potentially exacerbate the issues at the border in the months leading up to the election — a loss made even more damaging given that it would be meted out by a panel comprised primarily of Democratic appointees, no less,” he said.
“Up until now, we have been repeatedly assured that the rule is critical to the security of the border. But now, astoundingly, the government seeks to abandon its defense of the rule — or at least put that defense on ice until a more politically convenient time,” he said. “Whatever the parties’ real motivations are for seeking to stay this case, they haven’t provided us with a legally sufficient basis for their sudden change of course.”
The dissent raises questions about the administration using the courts and settlements strategically on immigration policy for political gain.
