Texas sues to block Biden asylum reforms

(CN) — Texas sued the Biden administration Thursday to block enactment of a proposed rule it says will make it easier for immigrants with meritless asylum claims to avoid deportation and stay in the United States.

The number of immigrants with pending asylum cases had grown to 1,596,193 at the end of 2021—larger than the population of Philadelphia, the nation’s sixth-largest city—and they are waiting an average of more than four years for hearings to resolve their cases, according to Syracuse University’s Transactional Records Access Clearinghouse.

Unveiling a strategy to reduce the backlog, the Biden administration proposed new rules last August to ease the workloads of immigration judges, who currently have sole authority to make final decisions on asylum applications, by allowing U.S. Citizenship and Immigration Services asylum officers to grant asylum.

The federal government issued an interim rule in late March with minor modifications to the original proposal. The new rule is set to take effect May 31.

The feds claim the new regime will reduce the number of asylum cases referred to immigration judges in the Executive Office of Immigration Review, part of the Justice Department, by 11,250 to 45,000 cases per year and will shorten the process for resolving them to several months, not years.

Texas Attorney General Ken Paxton disagrees. He claims in a lawsuit filed Thursday in Amarillo federal court the new approach will incentivize immigrants to make meritless asylum claims.

“It’s true that our immigration system is extremely backlogged. But the answer is to secure the border, not overwhelm it even more by enacting cheap, easy incentives for illegal aliens to get into the United States,” said Paxton, a Republican, noting this is the 11th time he has sued the Biden administration over its immigration policies.

Paxton believes federal law requires the Biden administration to imprison asylum seekers who enter the country without papers, or return them to the country they entered from, in most cases Mexico.

He concedes a process called parole allows for immigrants to be released into the U.S. to await their asylum hearings but says it is supposed to be used sparingly on a case-by-case basis and only for urgent humanitarian reasons or significant public benefit, such as for someone who needs medical care in the U.S., or is old and infirm and has family in the U.S. who can take care of them, or because their testimony is needed in court.

In his lawsuit, Paxton claims the Biden administration is abusing parole as it released more than 836,225 undocumented immigrants into the country within the first 15 months of President Biden’s presidency.

But a fundamental problem with the country’s immigration system is the government only has capacity to detain around 35,000 noncitizens in detention centers run by U.S. Immigrations and Customs Enforcement or its contractors.

Since Biden took office in mid-January 2021, the lowest monthly total of immigrants the Border Patrol has encountered at the Southwest border is 101,099 in February 2021, and that number grew to 221,303 last month, a record for Biden’s tenure, according to U.S. Customs and Border Protection.  

Paxton alleges the new asylum rule will be disastrous for Texas’ finances because federal law requires the state to pay for emergency Medicaid services for noncitizens and public education for their children.

In addition, Paxton says, the Texas Family Violence Program, which provides emergency shelter and support for domestic violence victims, spends more than $1 million per year on services for undocumented immigrants

“Also, Texas spends tens of millions of dollars each year for increased law enforcement, and its citizens suffer increased crime, unemployment, environmental harm, and social disorder, due to illegal immigration,” the complaint states.

Texas seeks an injunction to stop the Department of Homeland Security from adopting the new asylum rule.

It argues the rule violates the Administrative Procedure Act and the Appointments Clause of the Constitution by transferring authority to grant asylum from immigration judges--who through their appointment by the attorney general are properly appointed officers of the United States—to asylum officers, who do not meet that standard and are merely members of the general civil service.

USCIS is hiring several hundred new asylum officers and specially training them to administer claims under the new rule, according to Michael Knowles, president of the American Federation of Government Employees, Local 1924, which represents asylum officers in and around the nation’s capital.

Knowles stressed that is not enough as his union has told Congress that USCIS needs to hire more than 1,000 officers to effectively carry out the initiative.

Contrary to Paxton’s allegations the new rule will entice more people to come to the U.S. with bogus asylum claims, Knowles said he thinks it will reduce the asylum case backlog by more quickly granting protection to immigrants who qualify and speeding up the process of getting those with meritless claims in front of immigration judges.

“We do not believe that this new rule provides any incentives to the filing of meritless asylum claims.  To the contrary, if effectively implemented, the rule should result in bona fide refugees gaining protection more quickly and expediting the referral of meritless claims to the immigration courts,” he said in an email.

Paxton filed the lawsuit in Amarillo, knowing it would be likely be assigned to U.S. District Judge Matthew Kacsmaryk. And it was assigned to him, court records show.

Appointed to the bench by former President Donald Trump, Kacsmaryk, in a challenge filed by Texas and Missouri, ordered Biden last August to reinstate Trump’s Migrant Protection Protocols, a controversial program in which some immigrants are returned to Mexico to await resolution of their asylum claims.

The Biden administration urged the U.S. Supreme Court on Tuesday to let it end the policy, commonly called Remain in Mexico.

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