GOP-led states take aim at ‘smoke screen’ Biden asylum rule with new legal challenge

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Over a dozen Republican-led states have filed a lawsuit targeting the Biden administration’s asylum rule that forms the centerpiece of its post-Title 42 strategy to reduce illegal border crossings, adding to already significant legal pressure facing the controversial rule from left and right.

Eighteen states, led by Indiana, are challenging the "Circumvention of Lawful Pathways" rule that was implemented as rapid expulsions under the Title 42 public health order expired.  

The rule presumes migrants to be ineligible for asylum if they have entered illegally and have failed to claim asylum in a country through which they have already traveled. The administration has said it is designed to discourage irregular migration and encourage migrants to use the expanded legal pathways set up.

That presumption of ineligibility can be challenged if migrants can show exceptional circumstances and officials have rejected comparisons to the Trump-era travel ban. The rule also does not apply to unaccompanied minors. The rule has formed a central cog in the Biden administration’s efforts to tackle a post-Title 42 surge, along with messaging, cooperation with NGOs and Mexico and a stiffening of traditional Title 8 penalties.

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"Starting tonight, people who arrive at the border without using a lawful pathway will be presumed ineligible for asylum. We are ready to humanely process and remove people without a legal basis to remain in the U.S.," DHS Secretary Alejandro Mayorkas said in a statement as the public health order expired.

Secretary of Homeland Security Alejandro Mayorkas speaks at a news conference on Wednesday, May 10, 2023, ahead of the lifting of Title 42. (AP Photo/Kevin Wolf)

But the rule has angered activists on the left and lawmakers on the right. The new lawsuit argues that the rule will "further degrade our nation’s border security and make it even easier to illegally immigrate into the United States."

The lawsuit argues that the rule fails to target the causes of the migrant crisis now into its third year and instead "tries to define the problem away by re-characterizing what would be illegal crossings as ‘lawful pathways.’"

"The Defendants claim that the Circumvention Rule will deter illegal border crossings, decrease the number of new unlawful aliens in the United States, and reduce reliance on human smuggling networks. The truth, however, is that the Circumvention Rule is some combination of a half measure and a smoke screen," the states argue. "It is riddled with exceptions, and it is part of the Biden Administration’s broader effort to obfuscate the true situation at the Southwest Border."

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The lawsuit goes on to argue that the accompanying parole policies used by the administration "will increase the number of unlawful aliens in the United States by guaranteeing a quicker path to quasi-legal status in the United States (with accompanying work permits and access to entitlement programs and social services)."

"And the toothless Circumvention Rule will do little to prevent the resulting irreparable harm to the Plaintiff States," they say.

The lawsuit also argues that, while the rebuttable presumption of ineligibility is lawful, the exceptions to the presumption of ineligibility are "contrary to law, unreasonably vague, and arbitrary and capricious."

The states involved in the lawsuit are North Dakota, Alaska, Arkansas, Florida, Idaho, Iowa, Kentucky, Mississippi, Missouri, Montana, New Hampshire, Oklahoma, South Carolina, Tennessee, Utah, Virginia and Wyoming.

The lawsuit comes after a separate lawsuit from Texas, first reported by Fox News Digital, last week. That challenge targets the use of the CBP One app to allow migrants into the U.S.

"In a farcical attempt to address the invasion of illegal aliens across the southern border following the end of Title 42, the Biden Administration published a new Final Rule inviting migrants to download an app to schedule a convenient time and place to cross the border illegally," the complaint says.

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The complaint states that neither the app nor CBP officials ask if migrants are seeking asylum. It claims that the administration is encouraging migrants to cross the border "without establishing that they meet some exception from removal or have a legal basis to remain in the country."

Separately, the left-wing American Civil Liberties Union has sued over the policy arguing that it is too similar to the Trump-era transit ban which were eventually blocked by the courts.

That lawsuit argues that the new rule unlawfully restricts a right to claim asylum no matter how the migrant enters the U.S., and forces the use of a flawed mobile app which the lawsuit argues has been proven to be flawed and restrictive.

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"The Biden administration’s new ban places vulnerable asylum seekers in grave danger and violates U.S. asylum laws. We’ve been down this road before with Trump," Katrina Eiland, managing attorney with the ACLU Immigrants’ Rights Project, said in a statement announcing the lawsuit. "The asylum bans were cruel and illegal then, and nothing has changed now."

Should any of the lawsuits succeed, it would torpedo a key part of the administration’s efforts to slow down migrant encounters at the border. Officials have touted a more than 70% decrease at the border from the highs seen before the end of Title 42 on May 11.