A group of sixteen states led by Texas are challenging whether border asylum officers have the authority to approve asylum requests. In their challenge, the states claim the asylum officers are employees and as such, are not empowered to approve asylum requests. They argue that solely appointed officials can review and approve these requests.

In the challenge, the states argue that the interim final rule giving border asylum officers the power to grant asylum violates the U.S. Constitution’s Appointments Clause. They state asylum applications submitted by individuals in expedited removal proceedings are meant to be handled by immigration judges. In their motion, they identify a Supreme Court finding that these functions require appointment as an officer.

The states further claim the policy violates the Immigration and Nationality Act (INA) and the Homeland Security Act. Per these acts, the Department of Justice (DOJ) has the final authority to issue asylum application decisions through the expedited removal process. Finally, they claim the policy is arbitrary and capricious per the Administration Procedure Act by failing to provide the rule’s costs to states.

The rule, issued in 2022 by the Biden administration, was introduced to address the historic backlog of immigration cases. The White House argued the lawsuits should be removed twice, with one matter filed by Louisiana and Florida, and the second by this group of states led by Texas. In their arguments, the administration claims there is no type of injury to the states that supports a lawsuit. In the challenge from Florida and Louisiana, a U.S. District Judge agreed and dismissed the challenge. However, a U.S. District Judge in Texas is not convinced and advanced the challenge.

ILBSG actively monitors ongoing news addressing U.S. immigration. If you have questions about employment-based or family-based immigration, contact us. Our team of experienced attorneys take great care in understanding each client’s unique situation to ensure they get the right advice.

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