Victory! Attack on Biden’s Asylum Express Continues

Press Releases

February 7, 2024

Court indicated new, streamlined process violates the Constitution

WASHINGTON—Today, a Texas federal district court refused to dismiss a case against a new Biden Administration rule making asylum easier and faster than before. The rule seeks to achieve greater ease and speed in the asylum process by transferring the authority to make final grants of asylum from immigration judges, where it now resides, to the federal employees known as asylum officers. The Immigration Reform Law Institute (IRLI) had filed a brief in the court opposing dismissal. 
In its brief, IRLI showed that the transfer of authority is blatantly unconstitutional. Under the Appointments Clause, government actions bearing the authority of the United States must be performed by properly-appointed officers of the United States. Undoubtedly, final grants of asylum, which have far-reaching consequences, including a path to citizenship for recipients, are acts bearing the full authority of the United States.
Yet, by statute, asylum officers (despite their title) lack the discretion and scope of duties necessary to make them officers of the United States, as opposed to mere federal employees. By contrast, immigration judges, whose discretion and responsibilities are wide, are officers, and thus are the appropriate officials to make final decisions on asylum applications.

Today, the court agreed with this analysis, and, noting that imminent harm could come from the new system, allowed the case against it to continue.  
“It is obvious what Biden is doing: expanding asylum radically by instructing lower-level federal employees to rubber-stamp applications,” said Dale L. Wilcox, executive director and general counsel of IRLI. “But asylum should only be granted by officers accountable to the people, not by faceless minor bureaucrats operating an assembly line. We are pleased that the court saw the crucial constitutional values imperiled by this new system, and ruled against the administration.”
The case is Texas v. Mayorkas, No. 2:22-cv-00094 (N.D. Tex.).  

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