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This suit is a challenge by 19 states (initially led by Arizona, which later bowed out of the case but is still listed as the “lead” plaintiff in the caption) 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 went 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.

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. 

During this discovery period, the states (led by Louisiana and Florida) sent subpoenas to a number of organizations that provide services to asylum seekers and other immigrants, demanding that the organizations turn over their records about (among other things) the specific asylum seekers they assisted in Louisiana or Florida. The states apparently believe that they could use this information to help establish that the states are actually injured by the asylum regulation that they challenge (which is a constitutional requirement to bring suit in federal court). Several organizations that received one of these subpoenas moved to quash them; Judge Joseph held a hearing on the motions to quash on April 4, during which he stayed (paused) enforcement of the subpoenas, but deferred ruling on the motions to quash for 60 days to give the States’ the opportunity to first obtain the requested information from the federal government. The States ultimately withdrew the subpoenas.

Judge Joseph held a hearing on May 24, 2023 on both sides' motion to compel the other side to provide requested information. During the hearing, Judge Joseph granted in part and denied in part each side’s motion. Although Judge Joseph did not issue a written opinion explaining or even memorializing the decision he gave orally at that hearing–and because the transcript of it is not yet publicly available–we do not know exactly what he ordered. From a protective order issued a month later, however, we know that he ordered the federal government to produce to counsel for Florida and Louisiana the names, dates of birth, A number, and addresses of all noncitizens who: (a) have been granted asylum under the challenged regulation; and (b) provided DHS a most recent address in either of those two states.

Discovery concluded in December 2023 and the parties are currently briefing the federal government’s motion to dismiss this case. Briefing on that motion is scheduled to conclude in late February 2024.


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.

The Plaintiff States initially filed a motion for a preliminary injunction, but withdrew it in July 2022, saying they intended to amend their complaint and would no longer be seeking injunctive relief. ​​​

Judge Joseph has informed the federal government more than once that “[f]ailure of the Defendants to file a Rule 12 motion challenging the Article III standing of Plaintiff states [by the deadline, currently December 22, 2023] will constitute waiver of Defendants’ right to later raise that issue.”


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