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This suit is a challenge by 20 states (led by Arizona) to an asylum-related regulation issued by the Department of Homeland Security in March 2022.  Prior to issuing that regulation, DHS provided notice of it (in August 2021) and invited the public to comment on it.  The states bringing this suit allege that the regulation—which is set to go into effect on May 31, 2022—is contrary to immigration statutes and that it did not strictly adhere to required procedures.

The day after this suit was filed, the Biden Administration filed a motion to transfer the case to the District Court for the District of Columbia, which–the motion argues–is the only court with jurisdiction to hear it.  Following briefing on the motion to transfer, Judge Joseph denied it at a hearing on May 18.

After a short initial period of discovery (which is a process by which each side can request documents and testimony from the other), on July 20, 2022 the Plaintiff States decided to withdraw their motion for a preliminary injunction and to file another amended complaint.  The Plaintiff States filed their Second Amended Complaint in November 2022.

In mid-January 2023, Judge Joseph granted the States’ request to take discovery (i.e., to make document demands and/or to depose witnesses) from the federal government to better support the States’ assertions that they are injured by the challenged regulation. Judge Joseph ordered the parties to complete this jurisdictional discovery by March 24, 2023.

Technical Summary

The Plaintiff States allege eight claims: that the regulation (1) exceeds statutory authority by authorizing asylum officers to finally adjudicate asylum claims; (2) exceeds the statutory parole authority by permitting parole when detention is impracticable; (3) violates the Secure Fence Act by allegedly incentivizing unlawful entry; (4) constitutes arbitrary and capricious agency action, in violation of the APA, with regard to its asylum procedures; (5) constitutes arbitrary and capricious agency action with regard to its parole provisions; (6) violates the APA’s notice and comment requirement, allegedly because it was “not a logical outgrowth of the rule proposed” in August 2021; (7) failed to respond to significant comments, also in violation of the notice and comment requirement; and (8) violates the Take Care Clause of the Constitution.  

The federal government’s motion to transfer argued that because the asylum rule concerns the expedited removal process, 8 U.S.C. § 1252(e)(3) provides that the only court with jurisdiction to hear the case is the District Court for the District of Columbia.  The denial of the motion to transfer was without prejudice to renewal.​​​


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