By Daniel Wiessner
(Reuters) – A lawyer for the administration of U.S. President Joe Biden on Tuesday told an appeals court that a judge was wrong to block a rule imposing new restrictions on asylum seekers at the U.S.-Mexico border.
A three-judge panel of the 9th U.S. Circuit Court of Appeals in Pasadena, California, heard the government’s appeal of a decision that said the rule adopted earlier this year violates federal immigration law, which explicitly states that crossing the border illegally should not be a bar to asylum.
The challenge to the rule was brought by immigrant advocacy groups represented by the American Civil Liberties Union (ACLU).
Biden, a Democrat, took office in 2021 pledging to reverse many of the hardline policies of Republican former President Donald Trump, but has adopted many strict border measures as record numbers of migrants have been caught crossing illegally.
The regulation presumes most migrants are not eligible to apply for asylum if they passed through other nations without seeking protection there first, or if they crossed the border illegally instead of arriving at a designated port of entry.
The 9th Circuit in August paused the judge’s ruling that blocked the rule, allowing it to remain in effect pending the outcome of the appeal.
Brian Boynton of the U.S. Department of Justice argued on Tuesday that the rule is valid because rather than categorically barring asylum for migrants, it includes various exceptions to rebut the presumption that they are ineligible.
Through September, 12% of migrants who had applied for an exception under the rule had received it, Boynton said.
But that statistic merely shows that the vast majority of migrants are being barred from even being considered for asylum because of the way they entered the U.S., in violation of immigration law, ACLU lawyer Spencer Amdur told the court.
“Such a small exception can’t be what makes the difference to the rule’s legality,” Amdur said.
The judges did not indicate how they were leaning during the hour-long hearing. But two of them noted that federal immigration law appears to give the government broad discretion to consider any relevant factors in deciding who ultimately receives asylum protections.
If the manner of entry can be considered in making a final decision on asylum, it makes sense that it could be factor in determining whether a migrant can apply in the first place, Circuit Judge Lawrence VanDyke said.
(Reporting by Daniel Wiessner in Albany, New York; editing by Deepa Babington)