A federal appeals judge has blasted his colleagues for allowing the administration of President Joe Biden to "collude" with left-wing activist "frenemies" to put aside a court fight until after this year's presidential election over an immigration rule that the Biden administration has insisted is needed to prevent an even greater crisis at the Mexico border, but which may prove politically problematic for Biden from the left.
Known as "Circumvention of Lawful Pathways," the rule requires immigration officials to presume that so-called "asylum seekers" attempting to walk across the southern U.S. border are ineligible for asylum if they had first traveled through a country other than their own to arrive at the border.
The rule was instituted by the Biden administration after Biden rescinded policies instituted by former President Donald Trump that allowed immigration officials a greater hand in expelling illegal aliens, supposedly seeking asylum.
The Biden rule, however, appeared to have little effect on actual migrant entries into the U.S. Since Biden became president, millions of illegal aliens from throughout the world have walked across the U.S. border.
According to the U.S. Border Patrol, as many as 250,000 such migrants were encountered by U.S. Border Patrol at the border with Mexico in December 2023 alone. That number does not include many others known as "got-aways" who Border Patrol were unable to detain.
The demographic makeup in those allegedly seeking asylum has also shifted dramatically in recent years. Whereas historically, the vast majority of those arriving at the southern border were from Mexico and nearby Central American nations, now the majority are from other countries.
Venezuelans, for instance, accounted for 47,000 of the 250,000 migrant "encounters" at the Mexico border in December alone - or about 19% of illegal immigrants encountered there, according to Border Patrol.
And 6,000 "encounters" at the Mexico border in December were Chinese nationals, despite the thousands of miles of Pacific Ocean that lay between that country and the nearest U.S.-Mexico border crossing.
The vast majority of those detained, however, were almost immediately released into the U.S., pending hearings on their supposed requests for asylum.
Nonetheless, left-wing activist groups have challenged even the modest restrictions the Biden administration claimed it needed to impose to prevent an even greater surge of illegal immigration into the U.S.
They brought their case in federal court in California, where an appeal remained pending before the Ninth Circuit court.
However, after years of litigation, the Biden DOJ and the activist groups suing them told the court they intended to enter talks to "settle" the matter. They requested a stay of the proceedings, ostensibly to give time for such talks.
Two of the members of the appellate panel assigned to the case granted that request, without comment.
However, that decision drew a lengthy and heated dissent from Ninth Circuit Judge Lawrence Van Dyke.
In the dissent, Van Dyke said his colleagues were wrong to accept the administration's and activists' request without first requiring them to provide a valid legal reason for such a stay.
Van Dyke asserted his belief that the stay request was rooted entirely in politics.
Van Dyke noted that the crisis at the southern border will likely figure to be a major issue in the upcoming presidential election, as the public largely pins the blame for the crisis on President Biden and his policies.
According to a new survey conducted by Pew Research, only 18% of Americans believe the government under Biden is currently doing a good job dealing with the illegal immigration crisis. Further, only about 26% of Biden's fellow Democrats believe his administration is handling the southern border well.
Van Dyke said he believed the stay will allow the Biden administration to keep the case out of the public eye and away from the conservative majority on the U.S. Supreme Court for months, likely until after the November election.
"The administration’s abrupt about-face makes no sense as a legal matter," Van Dyke wrote. "Either it previously lied to this court by exaggerating the threat posed by vacating the rule, or it is now hiding the real reason it wants to hold this case in abeyance. Given its success thus far in defending a rule it has consistently characterized as critical to its control of the border, and the fact that it has to realize its odds of success in this case can only improve as it works its way vertically through the federal court system, the government’s sudden and severe change in position looks a lot like a purely politically motivated attempt to throw the game at the last minute.
"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," Van Dyke said.
Even if the stay should result in a settlement to end the rule before the elections, Van Dyke noted such a settlement would then allow the Biden administration to "blame the courts" for overseeing the end of the rule that the Biden administration had insisted in court was needed to stem the tide of illegal immigration.
"Step one: Stay proceedings before a final vindication of its position. Step two: Settle, agree not to enforce the rule, and blame the courts for tying its hands," Van Dyke wrote.
"If this is truly the government’s plan, then it is for all practical purposes seeking to repeal the rule without the need for notice and comment, and its pro forma defense of the rule has been rendered nothing more than a half-measure - an illusion. It could take credit for creating an important rule and defending it with one hand, and then, by colluding with the plaintiffs, it can set the policy it actually wants with the other, all while publicly blaming the result - cloaked as it is in the language of a judicial 'settlement' on the courts."
Either way, Van Dyke said, the Biden administration benefits politically - but not legally - from putting the proceedings in the case on hold. And he said his colleagues should not have gone along with the Biden administration's political gambit.
"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," Van Dyke wrote. "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."