Arizona Attorney General Mark Brnovich has filed another lawsuit against the Biden administration over its lack of defending the southern border. Leading a coalition of 14 states, the lawsuit challenges a new asylum rule that switches much of the authority over granting asylum away from federal immigration judges, giving it to asylum officers with the Department of Homeland Security.
“This is nothing more than a radical attempt to set up a system that encourages illegal immigration and undermines the rule of law,” said Brnovich in a statement. “President Biden may not care about the American people, but I do. I will continue to push back against his unlawful policies and imperial edicts.”
The attorneys general are concerned that combined with the Biden administration rescinding the Title 42 COVID-19 restrictions on the border on May 23, the result will be a “massive increase in unlawful border crossings and asylum claims,” which “even the Administration admits.” The asylum rules go into effect just eight days later on May 31. The complaint expresses concern that the Biden administration is deliberately adding the asylum rule in order to deal with the expected surge of migrants.
The lawsuit says the new rule will result in a “substantial increase in the approval rate of non-meritorious asylum claims.” The immigration judges “have a level of independence from political officials,” whereas the asylum officers “are far more susceptible to political control within the Administration.” They have a record “greater-than-85% failure rate in approving non-meritorious asylum claims at the credible fear stage.” This is a problem since “the vast majority of asylum claims have no merit.”
The Center for Immigration Studies tracks asylum officers’ history of bias, most notably fighting former President Donald Trump’s efforts to secure the border. Senior Legal Fellow George Fisher said regarding the new asylum rules, “[A]sylum officers (and their supervisors) by and large believe that the actions taken by the Trump administration to remedy the southern border crisis were misguided if not actually malevolent.” Their union representatives write “amicus briefs seeking to convince federal courts to enjoin and declare unconstitutional Trump administration efforts to secure the border.”
The complaint says the asylum rule illegally bypassed Congress and violated several laws, including the Administrative Procedures Act “many times over.” After the notice of proposed rulemaking, there were 23 substantive changes made, “fundamentally altering it” so it was “radically different from what was proposed to the public.” The changes were so significant “that they take over 3,100 words even to summarize the changes.” The Biden administration ignored comments made by the states regarding the rule.
The Biden administration’s actions were arbitrary and capricious, the complaint alleges, because the rule failed to take into consideration the costs it would place on states, and there were other prudent steps that could have been taken such as hiring more immigration judges. They assert that the rationale was “pretextual,” since the Biden administration has made it clear by its actions “that the intent of the Administration’s immigration policies is to incentivize illegal immigration,” which is “widely recognized internationally.” The president of Mexico called Joe Biden “the migrant president.”
The attorneys general refute the Biden administration’s justification that the asylum system is backlogged. They assert, “[O]nly 17% of EOIR’s pending caseload is credible fear referrals. And because more than one-third of all aliens referred to EOIR for a credible fear determination never actually bother to file an application, the proportion of ‘real’ asylum cases before EOIR is even smaller.”
The complaint lists the negative effects of massive illegal immigration on each state suing. The 275,000 to 365,000 migrants in Arizona cost taxpayers over $1.7 billion a year. Additionally, even when migrants’ asylum claims are denied, they rarely leave the country and the government rarely takes steps to remove them.
The complaint noted that during former President Donald Trump’s last month in office, December 2020, the Border Patrol caught and released 17 illegal immigrants into other parts of the country. In contrast, during December 2021 under the Biden administration, 51,000 were caught and released.
Brnovich is leading a separate lawsuit against the Biden administration for removing the Title 42 COVID-19 restrictions on the border. Other lawsuits he has filed against the Biden administration over the border crisis include challenging DHS final guidance, defending the public charge rule, challenging the cancellation of the border wall construction, and challenging the interim guidance.
The other attorneys general in the lawsuit includes Louisiana, Missouri, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Mississippi, Montana, Nebraska, and Oklahoma, and South Carolina.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
Photo “Mark Brnovich” by Mark Brnovich.
