ACLU and DOJ discuss possible deal in asylum rule lawsuit

The Biden administration and the American Civil Liberties Union don’t want a 9th U.S. Circuit Court of Appeals panel to decide whether the government’s new rule designed to decrease the number of non-Mexican asylum-seekers crossing into the United States passes legal muster.

The ACLU and U.S. Department of Justice are discussing a possible settlement, attorneys for both sides wrote in a joint motion last week to put the government’s appeal on hold. The terms of a possible deal were not revealed.

Oral arguments in the case took place in November but the 9th Circuit panel has not issued a ruling. The judges had not responded to the joint motion as of press time Tuesday. East Bay Sanctuary Covenant et al. v. Biden et al., 23-16032 (9th Circ., filed July 26, 2023).

A second lawsuit involving the asylum rule is pending before U.S. District Judge Tanya S. Chutkan of the District of Columbia, an appointee of President Barack Obama.

In both cases, the ACLU and U.S. Department of Justice requested that the courts hold the lawsuits in abeyance because the parties “have been engaged in discussions regarding the rule’s implementation and whether a settlement could eliminate the need for further litigation in either case.”

Chutkan issued an order last week staying the case, adding that the government and plaintiffs’ attorneys should file another joint status report April 8 and every 60 days thereafter. M.A. et al. v. Mayorkas et al., 23-CV-01843 (D. D.C., filed June 23, 2023).

The ACLU Foundation Immigrants’ Rights Project and other immigration rights groups sued the Biden administration over its Legal Pathways asylum rule. It was put in place in May 2023 to replace Title 42, which President Donald Trump instituted as a public health restriction along the U.S.-Mexico border at the outset of the COVID-19 pandemic.

U.S. District Judge Jon S. Tigar, an appointee of President Barack Obama who previously struck down similar restrictions on asylum-seekers during the administration Trump’s presidency, struck down the Biden rule in July.

“The Rule is both substantively and procedurally invalid,” Tigar wrote.

A few weeks later, a 9th Circuit panel majority granted a U.S. Department of Justice motion for a stay blocking Tigar’s order pending appeal.

In the August order, the panel majority — consisting of Senior 9th Circuit Judges Richard A. Paez and William A. Fletcher, both appointees of President Bill Clinton — scheduled expedited review in the case.

9th Circuit Judge Lawrence VanDyke, an appointee of President Donald Trump, dissented, arguing that the 9th Circuit had ruled for a stay of Biden’s rules when it had overturned Trump’s similar rules a few years before.

“The Biden administration’s ‘Pathways Rule’ before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues,” he wrote. “This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app.”

During oral arguments in November, Paez questioned Brian M. Boynton, a principal deputy assistant attorney general, about whether the Biden asylum rule was any more acceptable than Trump’s restrictions.

He asked whether asylum-seekers in a third country would “suddenly fill out forms at their embassies. That doesn’t seem like a real option for someone who is trying to escape their government.”

VanDyke, while critical of the 9th Circuit’s rulings on the Trump asylum rules, said they should be treated as precedent.

Cody Wofsy, an ACLU attorney, declined to comment Tuesday on the latest developments in the two cases. Attorneys with the Justice Department could not be reached.