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AG Derek Schmidt challenges Biden administration’s proposed fast-track asylum system

Release Date: Apr 28, 2022

TOPEKA – (April 28, 2022) – Kansas Attorney General Derek Schmidt today filed a federal lawsuit challenging the Biden administration’s efforts to change federal immigration rules that govern asylum seekers by removing federal immigration judges from the review process and placing the authority entirely within the Department of Homeland Security (DHS).

Schmidt joined 13 other state attorneys general in filing the lawsuit in the U.S. District Court for the Western District of Louisiana. The states argue the change gives DHS unprecedented authority to grant asylum to migrants outright. The new rule not only violates federal laws and bypasses congressional approval, but also drastically erodes asylum integrity safeguards.

The Biden administration published the Asylum Rule in late March. The new process applies to new arrivals at U.S. borders who are making asylum claims. Federal law requires that immigration judges within the Department of Justice (DOJ) make the final determinations for migrants’ asylum claims, but under the new Asylum Rule that power would be largely transferred to DHS asylum officers instead of immigration judges

The Asylum Rule “would thus substantially remove DOJ from the review process,” the attorneys general wrote in the complaint. “In doing so, the rule would largely transfer authority from immigration judges, who have a level of independence from political officials, to Asylum Officers, who are far more susceptible to political control within the Administration. Compounding these problems [the Asylum Rule] eliminates the adversarial nature of the adjudication of asylum claims arising from the border, continues to guarantee to aliens the right to be represented by counsel during asylum determinations, and eliminates any equivalent representation for the interests of American citizens in preventing the granting of fraudulent and meritless asylum claims.”

The coalition argues the Biden administration did not follow the Administrative Procedure Act when promulgating the Asylum Rule, including by offering arbitrary and capricious reasoning and changing the final rule so completely from the proposed rule as to deny the public a meaningful chance to comment on it before issuance. Indeed, the changes are so significant that they take more than 3,100 words even to summarize the changes, which include at least 23 significant amendments by the Biden administration’s own count.

Furthermore, the Biden administration failed to analyze the interaction between the Asylum Rule and its proposed termination of Title 42, set to become effective on May 23, which many believe will cause a massive increase in illegal immigration and non-meritorious asylum claims. The Asylum Rule will go into effect merely eight days later, potentially causing an exponential increase in illegal border crossings. The effect will be to stack a crisis upon a crisis. The proposed Title 42 changes are currently blocked by court order in a separate case Schmidt and other attorneys general have filed.

A copy of the complaint in the case of Arizona v. Garland is available at https://bit.ly/3kn0hN3.

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