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Texas 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.

Texas, however, complains that one of the Asylum Ban’s narrow exceptions is unlawful: those asylum seekers to whom CBP gives a scheduled appointment to present themselves at a port of entry 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. Texas claims that the Asylum Ban did not go through required procedures and that the CBP One-based exception violates immigration law because it allegedly “encourages and incentives” migrants “to cross the border unlawfully.” Texas seeks vacatur (nullification) of the Asylum Ban in its entirety.

The Biden Administration moved to dismiss this case in August 2023; in response to that motion, Texas eventually requested the Court’s permission to file an amended complaint. The parties are currently briefing the Biden Administration’s motion to dismiss Texas’s amended complaint.

Technical Summary

Texas’s complaint alleges two legal claims: (1) that the regulation is ultra vires because neither 8 U.S.C. § 1103 (the stated statutory basis for the rule) nor anything else in Title 8 authorizes “encouraging and incentivizing illegal immigration”; and (2) that the rule is arbitrary and capricious due to the alleged failure to consider all relevant factors.

Texas’s First Amended Complaint reformulates its claims as follows: (1) an APA claim that the regulation’s exception (for CBP One users) to the presumption of ineligibility for asylum is ultra vires, including because it allegedly encourages and incentivizes illegal immigration; (2) that the same exception is arbitrary and capricious; and (3) a common law claim (e.g., not under the APA) that is otherwise identical to the first claim.

Texas filed this case in the Del Rio division of the Western District of Texas, where there was a 100% chance the case would be assigned to Chief Judge Alia Moses.



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