[ARCHIVED - September 2025]
This is an appeal of a district court’s dismissal of a lawsuit brought by Indiana and 17 other states in May 2023 to challenge a regulation issued a few weeks earlier by the Biden Administration. The convoluted rule makes non-Mexican asylum seekers at the southern border presumptively ineligible for asylum in the United States, subject to narrow, tightly restricted exceptions. The regulation (frequently referred to as the Biden “Asylum Ban”) is largely modeled on unlawful, anti-asylum policies first created by the Trump Administration, and it has been challenged by immigrants’ rights advocates.
Indiana, however, complains that the Asylum Ban’s narrow exceptions are unlawful, focusing in particular on an exception for those asylum seekers to whom CBP gives a scheduled appointment to present themselves at a port of entry; those migrants are allowed to apply for asylum (as is their legal right under U.S. immigration law). Only some migrants are even permitted to request such an appointment, which requires using the (quite problematic) CBP One smartphone application. Indiana claims that the Asylum Ban did not go through required procedures and that the exceptions violate immigration statutes. Indiana seeks vacatur (nullification) of the Asylum Ban’s exceptions.
In November 2024, and after extensive briefing spanning a little more than a year, the district court granted the Biden Administration’s motion to dismiss this case, holding that the Plaintiff States failed to prove that they were injured by the rule and therefore lack standing. The States subsequently appealed.
The States filed their opening brief on appeal in April 2025, but the Eighth Circuit subsequently granted the parties’ motion to dismiss the appeal in light of the change in presidential Administrations.
Technical Summary
Indiana’s complaint alleges eight legal claims: that the regulation (1) is ultra vires because it violates the parole statute, 8 U.S.C. § 1182(d)(5); (2) is ultra vires because it violates the Secure Fence Act of 2006’s requirement that DHS “achieve and maintain operational control” of the border; (3) is ultra vires because it conflicts with the Immigration and Nationality Act (generally); (4) is arbitrary and capricious generally; (5) is arbitrary and capricious specifically with regard to its exceptions; (6) was not a “logical outgrowth” of the rule that was proposed, a notice-and-comment violation; (7) didn’t address all relevant comments to the proposed rule, also a notice-and-comment violation; and (8) is ultra vires because it conflicts with the Immigration and Nationality Act (generally). Claims (3) and (8) are essentially the same, except that the former is brought under the APA and the latter is not.
Indiana’s complaint targets these parts of the rule: 8 C.F.R. § 208.33(a)(2)-(3) and 8 C.F.R. § 1208.33(a)(2)-(3).
Latest Updates
- 04/04/2025
- 01/24/2025Appeal docketed
