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On April 28, 2022, Texas filed this suit to challenge an asylum-related regulation issued by the Department of Homeland Security a month prior.  Notice of that proposed regulation had been issued in August 2021, after which the public was invited to comment.  Texas claims that the regulation is contrary to immigration statutes and the Constitution, 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. In the alternative, the Biden Administration requested that this case be stayed while the parallel case in Louisiana continues. Briefing on that motion and related jurisdictional issues concluded on May 20, 2022, and Judge Kacsmaryk issued an opinion denying the motion on July 8, 2022. The Biden Administration sought reconsideration of the decision denying transfer, but Judge Kacsmaryk issued an opinion denying that motion for reconsideration on September 14, 2022.

On May 23, 2022 Texas filed a motion for a preliminary injunction, asking Judge Kacsmaryk to block the asylum regulation while this case is fully litigated. Thereafter, Judge Kacsmaryk set a schedule for the parties to engage in limited discovery (a process by which each side can request documents and testimony from the other) regarding Texas’s standing to bring this lawsuit.  In July, however, Texas withdrew its motion for a preliminary injunction, and the parties sought a more extended schedule for the case.  

The parties completed discovery in early September 2023 and then briefed the Biden Administration’s motion to dismiss this case in its entirety. Judge Kacsmaryk issued a short opinion denying the motion to dismiss on February 6, 2024. DOJ subsequently filed a motion for reconsideration of that decision, which the parties are currently briefing; that briefing will complete by the end of May 2024.

Technical Summary

Texas alleges five claims: that the regulation (1) is contrary to the alleged requirement in the INA, as amended, that asylum seekers’ claims be finally adjudicated by immigration judges; (2) allegedly exceeds the statutory parole authority, by permitting parole when detention is impracticable; (3) empowers asylum officers to such an extent that they must be (but were not) appointed with the advice and consent of the Senate; (4) constitutes arbitrary and capricious agency action, in violation of the APA; and (5) violates the APA’s notice and comment requirement, allegedly because it was “not a logical outgrowth of the rule proposed” in August 2021.

Texas’s motion for a preliminary injunction argued that the State is likely to succeed on its first through fourth claims.

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.


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