A federal appeals panel has dealt another blow to efforts to stem the flow of illegal migrants into the U.S., saying the government cannot compel so-called "asylum seekers" who had already been turned away from a busy border crossing to then instead request "asylum" in the U.S. while still in Mexico.
On Oct. 22, a divided three-judge panel of the U.S. Ninth Circuit Court of Appeals said the so-called Asylum Transit Rule violated federal law and cannot be enforced against migrants already waiting at the U.S. border with Mexico.
In the 2-1 decision, the court's majority said the Asylum Transit Rule (ATR), which was put in place by the administration of President Joe Biden, illegally denied migrants who had already reached the U.S. border their legal rights to having their applications for asylum processed promptly, even if they had not yet reached U.S. soil.
U.S. Ninth Circuit Court of Appeals Judge Ryan Nelson
| Federalist Society
Circuit Judge Ryan D. Nelson dissented.
In dissent, Nelson said his colleagues had "twisted" the relevant federal law to now require U.S. border officials interview "asylum seekers" while they were still in Mexico. Nelson said this effectively now extends asylum protections normally granted only to immigrants already in the U.S. to those in another country for the first time.
Friedland and Owens were each appointed to the Ninth Circuit in 2014 by former President Barack Obama.
Nelson was appointed to the court in 2018 by former President Donald Trump.
The decision comes after the Biden administration appealed a San Diego federal judge's decision blocking the government from enforcing the ATR rule against migrants who had already been turned away from a U.S. border crossing under a different policy.
Under that policy, known as "metering," border protection officers are allowed to turn away migrants from a border crossing if it has become too busy and force them to either travel to a different border crossing for processing or to wait to try again at a different time.
While that policy was in place, the Biden administration also imposed the ATR, which requires migrants from more distant countries who are seeking "asylum" protections in the U.S. but traveling through a third country to first apply for asylum in Mexico or another country.
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."
Under federal law, immigrants are allowed to apply for asylum as long as they are actually in the U.S. or when they "arrived in the United States."
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.
Under the administration of President Biden and Vice President Kamala Harris, at least 10 million illegal immigrants have crossed into the U.S. since 2021, straining resources in states and cities along the border and across the country.
Illegal immigration has stood at the center of the U.S. presidential race in 2024, particularly as the Democratic Party has nominated Harris as their standard bearer to replace Biden. Despite more recent claims to the contrary from Harris' political supporters and allies in the media, Biden himself referred to Harris as his "border czar," who he tasked with addressing the underlying issues driving the illegal immigration crisis.
In the meantime, federal courts have waded into the fray, often frustrating what efforts the Biden administration has deployed in the name of slowing the influx of migrants into the U.S.
The Ninth Circuit court, for instance, earlier this year blocked Republican-led states from intervening to prevent the Biden administration from negotiating the end of the so-called Lawful Pathways rule, which generally blocked "asylum seekers" from claiming asylum if they crossed the U.S.-Mexico border after May 11, 2023.
In the most recent case before the Ninth Circuit, the court again said the Biden administration couldn't take action against certain illegal immigrants who had been blocked from entering the U.S. under the metering rule.
Siding with illegal immigrant advocates against the government, judges Friedland and Owen said the metering rule wrongly denied immigrants their rights under federal law to have their asylum requests heard and violated the "government's obligation to inspect asylum seekers."
"We accordingly conclude that the metering policy constituted withholding of agency action, not delay," Friedland wrote for the majority. "Under the metering policy, border officials turned away noncitizens without taking any steps to keep track of who was being turned away or otherwise allowing them to open asylum applications.
"Such a wholesale refusal to carry out a mandatory duty - leaving the responsibility to try again in each noncitizen's hands - cannot be called delay within the meaning of (federal law.)"
They upheld the lower court's injunction, which they said they don't believe forces the federal government to take any specific steps, but to only abide by its obligations under the law.
In dissent, however, Nelson blasted his colleagues, saying their reasoning wrongly extends protections to "asylum seekers" not in the U.S., which they should not have under U.S. law and to which no court has ever held they should be entitled.
He said the majority wrongly extends the phrase "arrives in the U.S." to mean merely arriving near the U.S. border, and not actually stepping foot in the U.S. He said this essentially illegally creates by judicial decree a nebulous region within Mexico that is legally considered to be under the control of the U.S. for the purposes of immigration, but yet is not legally U.S. territory.
And he said the majority decision's "sweeping new rule" erases any "distinction between 'withheld' and 'delayed' agency action," by finding that the government's decision to make migrants wait an undetermined amount of time amounts to an illegal refusal to consider their "asylum" requests under federal law.
Recognizing such claims by migrants against the U.S. "would require us to find that Congress, which generally legislates against the backdrop of existing law, silently waived the Nation's sovereign immunity in cases brought by any alien not immediately processed at the border," Nelson wrote.
"Nothing Plaintiffs identify would support such a drastic departure from precedent, particularly in a case that would open the federal coffers to aliens who have never stepped foot in the United States."