By Ted Hesson
(Reuters) -President Joe Biden’s new regulation restricting asylum access at the U.S.-Mexico border can remain in effect for now, a U.S. appeals court said on Thursday, a short-term win for the Democrat as he grapples with legal challenges to his immigration strategy.
The San Francisco-based 9th U.S. Circuit Court of Appeals put on hold a district judge’s July 25 ruling that found the regulation violated U.S. law by cutting off asylum for some migrants caught crossing the border illegally.
The restrictions can remain in place pending the outcome of Biden’s appeal, the 9th Circuit said, saying it would expedite the process.
Biden took office in 2021 pledging to reverse many of the hardline policies of former President Donald Trump, a Republican, but has adopted some Trump-like border measures as his administration has faced record migrant crossings.
Biden’s new asylum regulation presumes most migrants are ineligible for asylum if they passed through other nations without seeking protection elsewhere first, or if they failed to use legal pathways for U.S. entry. The measure took effect on May 11.
The American Civil Liberties Union (ACLU) and other groups challenged the Biden regulation, arguing it unlawfully denied asylum to some migrants caught crossing the border illegally and mirrored Trump-era restrictions that were also blocked in court.
U.S. District Court Judge Jon Tigar – who blocked the previous Trump policies – vacated the Biden regulation, but stayed his ruling for 14 days to allow an appeal.
Tigar said U.S. law does not limit asylum access for people crossing the border illegally and that transit countries to the south do not offer safe and feasible alternatives to migrants.
The 9th Circuit’s decision to allow the Biden policy to stay in effect does not mean it will ultimately rule in favor of it.
In 2020, the 9th Circuit upheld Tigar’s decision to block a similar Trump regulation that restricted asylum for migrants who transited through other countries en route to the United States.
The order on Thursday came from a three-judge panel, with a strident dissent from Judge Lawrence VanDyke, a Trump appointee.
VanDyke criticized his two colleagues – appointees of Democratic former President Bill Clinton – for keeping Biden’s border policy in place despite the 9th Circuit ruling against Trump’s version years earlier.
“It’s hard to shake the impression that something other than the law is at work here,” he wrote.
The ACLU could appeal the latest ruling to the U.S. Supreme Court, where conservative justices outnumber liberals 6-3.
(Reporting by Ted Hesson; editing by Mica Rosenberg, Aurora Ellis and Cynthia Osterman)
