Court rejects Biden administration attempt to dismiss Texas asylum policy lawsuit

A federal district court judge has denied a request by the Biden administration to dismiss a lawsuit Texas filed in an attempt to stop the administration from implementing a new asylum policy it argues is contrary to one established by Congress.

U.S. District Court Judge Matthew Kacsmaryk, who presides over the Northern District of Texas Amarillo Division, issued a nine-page ruling in response to motions that were filed last October.

The state of Texas and America First Legal sued the administration over a federal rule change created by the U.S. Department of Homeland Security, which changed the statutory and sole authority of asylum claim adjudication from immigration judges to include administrative officers. It also limits judicial review and gives additional authority to non-judicial officers.

Kacsmaryk wrote that asylum officers, under the policy, “are not subject to oversight by a properly appointed officer” but are merely “supervised by other asylum officers with ‘substantial experience adjudicating asylum applications.’”

The rule change likely subverts the law because it authorizes career government employees to grant asylum “as an exercise of the Secretary’s authority,” but their decision is only reviewed by another officer who is certified by the director of the U.S. Citizenship and Immigration Services, the judge noted.

This DHS policy change is one U.S. Senate Democrats and Republican Sen. James Lankford of Oklahoma sought to codify into law in a border bill that failed to advance. It was created to facilitate processing more illegal foreign nationals into the U.S. who made illegitimate asylum claims after they were unlawfully released into the U.S., opponents of the policy and those attempting to impeach DHS Secretary Alejandro Mayorkas argue.

Texas argued the rule change would increase the number of noncitizens obtaining asylum and increase costs to taxpayers since those being admitted receive substantial taxpayer-funded social welfare subsidies. Additionally, the Texas legislature has allocated more than $11.6 billion to border security efforts funded solely by Texas taxpayers, the greatest amount in state history, for which the federal government has not reimbursed Texas.

The Biden administration argued Texas didn’t have standing to sue. Kacsmaryk disagreed. He noted that an expert witness called to testify by the Biden administration said “changes to asylum process or processing … are sufficient to cause substantial changes in migration behavior.”

Kacsmaryk also said the law afforded Texas the ability to sue because “threatened injury is real, immediate, and direct” and the Biden administration didn’t deny “that the increase of unlawful immigration into Texas would constitute an injury.”

As a result of his ruling, the case continues to move forward.

The lawsuit argues the rule change is unconstitutional because it violates the Appointments Clause of the Constitution and violates the statutory system Congress created.

The Appointments Clause governs who appoints officers, stating, “Only the President, a court of law, or a head of department” can appoint an officer. An officer is one who occupies “a continuing position established by law” and has “significant authority pursuant to the laws of the United States.”

The lawsuit “offers a rare opportunity to litigate the application of the Appointments Clause,” the Office of the Texas Attorney General argues. DHS changing the role to adjudicate asylum claims from an immigration judge to an administrative officer was another attempt “to exceed the boundaries placed by the Constitution to advance its open borders policy,” it argues.

Mayorkas has maintained he has prosecutorial discretion to change polices, arguing Congress gave him such authority. Republican members of Congress seeking to impeach him argue this is not the case and he is in dereliction of duty.

A separate lawsuit was filed by a coalition of 14 attorneys general led by Arizona, Louisiana and Missouri on the same day in April 2022.

Former Louisiana attorney general and now governor, Jeff Landry, said at the time that the asylum rule change was yet another created by the Biden administration “to undermin[e] the rule of law and jeopardize[e] the safety and security of our country. This rule will make an already porous border even easier for drugs, human traffickers, and sexual predators to cross."

Nearly two years after Mayorkas implemented the policy, saying it would reduce illegal entry, millions more foreign nationals illegally entered the country, with the greatest number illegally entering in December of more than 370,000, the greatest number in U.S. history for a single month.

From January 2021 to September 2023, more than 10 million people illegally entered the U.S., The Center Square first reported. If the numbers continue as they have for the first quarter of fiscal 2024, this year could see the highest number of illegal entries on record, topping the record entries of fiscal 2023.