9th Circuit 'colluded' to block Trump-era immigration rules, judge says

Liberal judges and the Biden administration colluded to frustrate President Donald Trump's effort to block asylum for migrants, a Trump-appointed circuit judge complained in blistering comments as he reluctantly signed on to an appellate order published on Thursday.

Slow walking the case for years in the lower courts has kept Trump's anti-asylum rules on ice and away from possible affirmance at the U.S. Supreme Court, the judge contended. 

And the stall goes on, wrote 9th U.S. Circuit Court of Appeals Judge Lawrence J.C. VanDyke, in a case that began with a challenge to Trump's anti-asylum rules in 2018 and now must again go back to the court that originally held against it, presided over by U.S. District Judge Jon S. Tigar of Oakland, a President Barack Obama appointee. East Bay Sanctuary Covenant et al. v. Trump et al., 23-16032 (9th Cir., filed July 26, 2023).

That will require further delay while Trump's rules remain on hold -- "the latest play in this ongoing game of Supreme Court keep-away," wrote VanDyke. He added that he was forced to agree to remand the case due to fresh high court guidance on standing issues that are at play in the litigation.

VanDyke used his concurrence to amplify current conservative attacks on the authority of individual federal district judges to issue nationally binding rulings. He blasted "the ease with which just one (district) or two (circuit) judges can effectively dictate nationwide policy on monumental issues." 

On Wednesday, the U.S. House of Representatives passed legislation that would bar federal district judges from issuing nationwide injunctions.

VanDyke also protested the related authority of lower courts "to tie up national policymaking with unsettled, highly questionable legal decisions -- particularly when those doubtful decisions can persist for a decade or more with no accountability from the Supreme Court."

VanDyke, who is known for his fiery dissents, has a magna cum laude degree from Harvard Law School. He caused a stir last month when he included a YouTube video of himself demonstrating the use of several guns, as part of his dissent in a gun case.

Trump placed him on the bench in 2020. He is on the circuit panel with two of the court's liberal stalwarts, Senior Judge William A. Fletcher and Senior Judge Richard A. Paez, both President Bill Clinton appointees. 

Immigration rights groups challenged Trump's 2018 orders denying protection to most asylum-seekers who seek to enter the U.S. outside a designated port of entry or who pass through another country to reach the U.S., effectively shutting the door to most. Tigar ruled against the orders; the 9th Circuit affirmed him. 

When the President Joe Biden administration took over, it did not appeal to the Supreme Court, which VanDyke said would likely have been an easy win for Trump's rules. Instead, VanDyke argued that Biden wanted to duck either upholding Trump's rules or challenging them. 

So, Biden had his lawyers buy time by re-promulgating the rules with some minor tweaks, allowing the immigrant rights plaintiffs to amend their complaint and again have Tigar rule in their favor, a process that took many months.

After the government's appeal was again argued at the 9th Circuit last year, the panel agreed -- over VanDyke's dissent -- with the parties' request to place the appeal in abeyance pending settlement discussions. The panel said that on Feb. 25, 2025, the parties notified the court that the talks were unsuccessful, leading to Thursday's remand order.

VanDyke accused Biden and the court of "colluding to avoid playing their politically fraught game during an election year."

Why did Fletcher and Paez agree to the stay? "Well, the panel majority never told us, but their stay had the obvious effect of keeping a petition for certiorari [or application for emergency relief] off the Justices' desks," VanDyke wrote.

He concluded, "Here, judges on our circuit have engaged in a coordinated dance with sometimes-collusive litigants to manipulate proceedings in what makes little rational sense except as a sustained effort to safeguard a single judge's ability to both direct national policy and avoid Supreme Court review."

The principal deputy assistant attorney general who argued the case for Biden's Department of Justice, Brian M. Boynton, has left the department and could not be reached. A current Department of Justice spokesman had no comment on Thursday's order. 

Spencer E. Wittmann Amdur of the American Civil Liberties Union Foundation Immigrants' Rights Project, who argued for the plaintiffs, did not return a call seeking comment. 

Melissa Crow, the director of litigation for the Center for Gender and Refugee Studies, one of the plaintiff groups challenging the Trump rules, said there had been no collusion between her side and the government.

"Biden's policies were not so different from what we saw with Trump, and we challenged them in both administrations."

She added, "Despite VanDyke's diatribe, this was a procedural decision in which the court agreed with our motion to remand."

Also on the plaintiffs' roster were several ACLU affiliates, the National Immigrant Justice Center and the Center for Constitutional Rights. 

Friends of the court representing 17 states lined up behind the Biden government as did the Immigration Reform Law Institute. An attorney for the institute, Matt A. Crapo, declined to comment.