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9th U.S. Circuit Court of Appeals

May 23, 2024

9th Circuit rejects Republican states' bid to intervene in asylum rule case

The states had sought to intervene in the case to participate in the settlement discussions and to object, if necessary, to any proposed settlement.

9th U.S. Circuit Court Judge Lawrence VanDyke

A 9th U.S. Circuit Court of Appeals panel on Wednesday rejected a bid by five Republican states to intervene in a lawsuit by the American Civil Liberties Union and other organizations against the Biden administration over its Legal Pathways rule designed to limit the number of non-Mexican asylum seekers crossing into the United States.

The plaintiffs and the federal government have postponed the appeal, asserting they are seeking a settlement, over the objections of 9th Circuit Judge Lawrence VanDyke, an appointee of President Donald Trump, who suggested the discussions are happening for political reasons.

The states want to intervene in the case to participate in the settlement discussions and to object, if necessary, to any proposed settlement. "Unfortunately, the states cannot rely on President Biden, et al. ... to defend and enforce the nation's immigration laws," wrote solicitor generals from Kansas, Georgia, Alabama, Louisiana and West Virginia.

The panel majority -- Senior 9th Circuit Judges William A. Fletcher and Richard A. Paez -- ruled that the states "do not have a significant protectible interest in maintaining the [Legal Pathways] Rule or in reducing immigration into the United States." East Bay Sanctuary Covenant et al. v. Biden et al., 2024 DJDAR 4343 (9th Circ., filed July 26, 2023).

"The 'nature and extent' of the states' interest in this appeal are far too attenuated to support intervention," added the judges, who are both appointees of President Bill Clinton.

VanDyke in his dissent argued that the Biden administration - which has defended the rule until now - must have changed its position.

"The states simply want to step in and continue the government's previous litigation position," VanDyke wrote. "They have made clear that they oppose settlement for a number of compelling reasons, and so actively defending the rule is the only way to continue protecting their interests."

The ACLU Immigrants' Rights Project sued the Biden administration over the asylum rule, which was put in place in May 2023 to replace Title 42, which was implemented by Trump as a public health restriction along with U.S.-Mexico border at the height of the COVID-19 pandemic.

U.S. District Judge Jon S. Tigar of Oakland, an appointee of President Barack Obama, enjoined the rule in August 2023. The U.S. Department of Justice appealed the decision, and the 9th Circuit panel majority in February allowed the rule to remain in place while the government and the plaintiffs were negotiating a possible settlement, according to their joint motion.

VanDyke dissented from that ruling too. ""Up until now, we have been repeatedly assured that the rule is critical to the security of the border," he wrote in February. "But now, astoundingly, the government seeks to abandon its defense of the rule - or at least put the defense on ice until a more politically convenient time."

The panel majority agreed to postpone the case for 60 days then, and granted a second 60-day extension last month.


Craig Anderson

Daily Journal Staff Writer

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