Skip to main content

This is an appeal of a April 2024 district court decision dismissing the suit brought by 19 states challenging an asylum-related regulation issued by the Department of Homeland Security in March 2022.  Prior to issuing that regulation, DHS provided notice of it and invited the public to comment on it.  The states bringing suit alleged 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. Following a period of discovery (the process by which each side in litigation can obtain documents and testimony from the other side and third parties) Judge Joseph of the Western District of Louisiana granted the federal government’s motion to dismiss, holding that the States could not demonstrate that the challenged regulation had caused them any harm, and thus they lack standing. 

The parties are currently awaiting a briefing schedule. 

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 operative deadline,] will constitute waiver of Defendants’ right to later raise that issue.”

In his April 16, 2024 motion to dismiss decision, Judge Joseph–in addition to dismissing the APA claims on standing grounds–dismissed the other two claims, holding that Plaintiffs failed to state a claim under the Secure Fence Act and that there is no private right of action under the Take Care Clause. In that decision, he also denied the federal government’s request to reconsider his May 18, 2022 (oral) decision denying the motion to transfer the case.


Latest Updates

  • 06/11/2024
    Appeal docketed
Blue and white cloud graphic with text that says "Freedom to Welcome" Justice Action Center, RAICES and UCLA Center for Immigration Law and Policy on the bottom.


Defend Humanitarian Parole Today!