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FIRST ON FOX: Texas Attorney General Ken Paxton is suing the Biden administration over a newly-implemented asylum rule, arguing that the use of a controversial CBP One application is being used to circumvent federal law.
The lawsuit targets a rule that was proposed earlier this year, and went into effect as the Title 42 public health order ended earlier this month. 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.
While the rule has received criticism from left-wing activists, who say the rule limits who can claim asylum in the U.S., it has also seen criticism from conservatives for the connected use of the CBP One app -- which allows migrants to make appointments at a port of entry to be processed.
A Customs and Border Protection officer (L) keeps watch as immigrants line up to be transported from a makeshift camp between border walls between the U.S. and Mexico on May 13, 2023 in San Diego, California. (Mario Tama/Getty Images)
"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 lawsuit says.
The Biden administration expanded the use of the app earlier this year to allow migrants to upload information and schedule appointments, at that time to request an exemption to Title 42. It is now being used to schedule appointments to be processed into the U.S. to claim asylum.
DHS has said the presumption of ineligibility for asylum will not apply if the migrant presents themselves at a port of entry having used the CBP One app to schedule an appointment. It also offers an exemption to the ineligibility presumption if it was not possible to access the app due to "extenuating circumstances, significant technical failure, or other applicable exception."
In a statement, Paxton said the administration’s goal with the application is "illegally pre-approving more foreign aliens to enter the country and go where they please once they arrive."
"Joe Biden, Alejandro Mayorkas, and the entire Biden Administration have prioritized creating and protecting new ways for illegal aliens to stream into this country, no matter the cost or consequence to struggling American citizens," he said.
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Paxton’s complaint argues that the administration is attempting to circumvent federal law by processing migrants who should otherwise be removed. The Biden administration has touted the rule as a way that combines lawful pathways with consequences for failure to use them.
"This Administration has led the largest expansion of legal pathways for protection in decades, and this regulation will encourage migrants to seek access to those pathways instead of arriving unlawfully in the grip of smugglers at the southern border," Secretary Alejandro Mayorkas said earlier this month.
The complaint says 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." Texas argues that by inviting migrants into the U.S., Texas will be hit by extra costs for education, health care and other services.
"The Biden Administration’s attempt to manage the southern border by app does not meet even the lowest expectation of competency and runs afoul of the laws Congress passed to regulate immigration, and the Final Rule should be enjoined," it say.
Texas Attorney General Ken Paxton speaks during the Conservative Political Action Conference CPAC held at the Hilton Anatole on July 11, 2021 in Dallas, Texas. (Brandon Bell/Getty Images)
In a statement on Friday, DHS said that since the end of Title 42 on May 11, an average of 1,070 migrants a day have presented to be processed in their appointments. The top three nationalities are Haiti, Mexico and Venezuela.
The lawsuit marks the latest in a number of high-profile cases against the administration. Florida and Texas have sued in separate cases over the administration’s "parole with conditions" policy -- which saw thousands of migrants released into the U.S. without court dates due to overcrowding.
WASHINGTON, DC - MAY 11: Secretary of Homeland Security Alejandro Mayorkas speaks during the daily news briefing at the James S. Brady Press Briefing Room of the White House on May 11, 2023 in Washington, DC. Mayorkas took questions from reporters about the expiration Title 42. (Anna Moneymaker/Getty Images)
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The judge in the Florida case recently imposed a temporary restraining order, and later a preliminary injunction on the use of the policy as the court case continues. Paxton has sued over a dozen times in cases related to the Biden administration’s border policies, securing a number of high-profile wins -- including a block on a planned deportation moratorium in 2021.
"Time after time, my office has shown that we will fight back in court to defeat their unlawful open-borders policies. We intend to stop this rule from wreaking further havoc on the people of Texas," Paxton said in his statement.
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