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Indiana and 17 other states filed this lawsuit 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.

The Biden Administration’s motion to dismiss this case is currently pending before Judge Traynor. Briefing on that motion concluded in mid–November 2023. Judge Traynor could issue a decision at any time.

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).​​​​​​


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