A federal appeals court has blocked several Republican-led states from attempting to stop the Biden administration from reaching a deal with several left-wing groups that could end the enforcement of an immigration rule, intended to limit the use of asylum requests and make it easier for the federal government to stem the flow of illegal immigrants entering the U.S.
A dissenting judge on the appellate panel, however, blasted his colleagues who wrote the majority decision, saying their ruling flies in the face of established legal principles, in part, to ensure at a politically preferred result and sidestep a potential date with the U.S. Supreme Court.
On May 22, a three-judge panel of the U.S. Ninth Circuit Court of Appeals denied the request from the states of Alabama, Kansas, Georgia, Louisiana and West Virginia to intervene in the legal action pending on appeal between a coalition of pro-illegal-immigration groups and the administration of President Joe Biden.
U.S. Ninth Circuit Court of Appeals Judge Lawrence VanDyke
| Montana Attorney General
The immigration groups had filed suit in 2023, challenging the so-called Circumvention of Lawful Pathways rule.
The Lawful Pathways rule was implemented in May 2023 by the Biden administration. It essentially blocks most people entering the U.S. illegally from Mexico from claiming asylum, if they crossed the border after May 11, 2023.
Democratic and left-wing illegal immigration supporters have asserted throughout the ongoing immigration crisis that claims of "asylum" from people otherwise in the U.S. illegally mean the U.S. cannot treat them as illegal immigrants, but rather as lawful "asylum seekers."
Those requesting asylum are typically allowed to remain in the country pending a hearing before an immigration judge. The hearing process can take years to complete.
According to government statistics, only about 14% of asylum requests were ultimately approved in 2023.
In 2023, a California federal judge ruled in favor of the immigration groups, and struck down the Lawful Pathways rule.
However, the Biden administration appealed to the Ninth Circuit, which then stayed the judge's ruling and kept the Lawful Pathways Rule in place while the appeal played out.
The Ninth Circuit heard arguments in the case in November 2023, and a decision has not yet been entered.
However, in February, the Biden administration and the immigration groups filed a joint request with the Ninth Circuit, asking the judges to hold their decision as they were negotiating a settlement.
The Republican-led states then filed their request to intervene, asserting they need to be involved in those settlement talks to ensure the Democratic president doesn't cut a deal that would result in the end of the Lawful Pathways Rule, or at least ending the federal enforcement of the rule.
Two Ninth Circuit judges - William A. Fletcher and Richard A. Paez, both appointees of former President Bill Clinton - denied that request.
In the majority order, the judges said the group of states can't show that allowing more illegal immigrants into the country would necessarily harm them, either by causing them to spend more tax money to care for the immigrants that may flood in or by causing them to lose proportional representation in Congress, as all people, regardless of citizenship or immigration status, are counted in the Census that determines political representation in the U.S. House of Representatives.
"Even if disposition of this appeal might affect state expenditures and political representation, such incidental effects are not at issue in the litigation and are, in any event, attenuated and speculative," the majority wrote.
They further asserted the states had waited too long to seek to intervene in the case.
In dissent, however, Judge Lawrence Van Dyke said the state's had good reason to wait to intervene until this stage in the court proceedings:
Because the states believed the Biden administration were defending the Lawful Pathways Rule, until it appeared they were not.
"... The federal government here did not raise the prospect of a settlement that could affect the States’ interest in the Rule until after we had already heard oral argument," Van Dyke wrote.
"Until then, the government’s vigorous defense of the Rule led the States to reasonably believe that their interests were adequately represented."
In denying the state's request to intervene in the proceedings, the majority ignored longstanding legal principles which should have allowed the states to intervene by right, Van Dyke said, principles that he said should be interpreted "liberally."
"Yet the majority once again inexplicably throttles this standard by cursorily denying the States’ request to intervene in this case. This continues a troubling trend by our court of denying intervention whenever it might upset a possible collusive settlement resulting in a favored policy," Van Dyke said.
Contrary to what the majority asserted, Van Dyke said the states had strong legal reasons for wishing to intervene to preserve the rule in the hope of preventing further burdens and political unrest caused by less restrained illegal immigration.
"... The States argue that the Rule is either lawful or it is not, and since this Court was poised to decide the issue before the parties filed a joint ruling, settlement now works only to unsettle the law," Van Dyke wrote. "Second, since the factual basis for the plaintiffs' standing is contested, 'it would be absude for the federal government to change federal policy based on litigation brought by parties who have no legally enforceable interest in the first place.'
"Finally, the government has represented elsewhere that the settlement discussions include 'related policies,' and so a settlement could affect the interests of the States in other unforeseen ways.
"The government's decision to enter into settlement negotiations rather than continue to actively defend the rule therefore represents a break with the States' interests."
And, by blocking the Republican-led states from intervening, Van Dyke pointed out the majority decision could also effectively end the matter, by also blocking those states and anyone from appealing the question of whether the Legal Pathways Rule is constitutional and legal to the conservative majority at the U.S. Supreme Court.
Van Dyke was appointed to the Ninth Circuit by former President Donald Trump.
Plaintiffs in the action include: the East Bay Sanctuary Covenant; the Central American Resource Center; the Immigrant Defenders Law Center; the National Center for Lesbian Rights; and the Tahirih Justice Center.
They are represented by attorneys from the Center for Gender and Refugee Studies, of San Francisco and Washington, D.C.; the American Civil Liberties Union Foundation Immigrants' Rights Project, of San Francisco and New York; and the Center for Constitutional Rights, of New York.