Justice Department sees ‘gamesmanship’ in latest immigration clash with Texas

State seeks to stop asylum policy just days before it is set to take effect

Military units from US Border Patrol and the National Guard arrive to the Rio Grande River in Eagle Pass, Texas, on May 23. (Allison Dinner/AFP via Getty Images)
Military units from US Border Patrol and the National Guard arrive to the Rio Grande River in Eagle Pass, Texas, on May 23. (Allison Dinner/AFP via Getty Images)
Posted May 24, 2022 at 1:55pm

Texas asked a federal judge on Monday to block a Biden administration overhaul of asylum processing at the border just days before the rule is set to take effect, a move the Justice Department criticized as “gamesmanship.”

The Biden administration wants more time to defend the new rule that is set to start phasing in on May 31, in the latest legal clash with a Republican-led state over changes to immigration policies.

The rule, finalized in late March, would allow asylum officers to approve migrants’ claims for protection after they cross the border, rather than sending all asylum-seekers into the backlogged immigration court system for judges to approve their claims.

The state of Texas filed a federal lawsuit to challenge the rule on April 28. But the state did not submit its request for the court to halt the rule until Monday — just eight days before the policy is slated to take effect.

That same day, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ordered the federal government to respond to the state’s 39-page filing by Thursday night — just three days later. The Trump appointee also ordered Texas to file its reply the next day, potentially teeing up a ruling ahead of the May 31 implementation date.

The Justice Department, in a filing later Monday, accused Texas of deliberately waiting to file its motion to gain an advantage in court, and urged Kacsmaryk to reconsider his briefing schedule to give the government more time to respond.

Requiring the government to respond in three days “would reward Texas’s gamesmanship in delaying their motion until the last minute” and would “significantly prejudice Defendants’ ability to respond,” government lawyers wrote in a Monday filing. And Texas cannot claim to be harmed by any delay that was of its own making, the department said.

Further, the government cannot respond properly to Texas’ motion until the court has ruled whether this court is the correct venue for the case, the Justice Department wrote. The department filed a motion nearly a month ago arguing that all lawsuits challenging how migrants are processed must be argued in D.C. federal court and Kacsmaryk has not ruled on that.

The government asked the judge to give it until June 3 to fully compile the administrative record, and until June 10 to respond to Texas’ motion.

Policy change

The contested policy was issued jointly by the Homeland Security and Justice departments in late March in an effort to speed up asylum processing at the Southwest border, which has seen increasing levels of migrations over the past year.

Currently, individuals who request asylum or other protection receive an initial evaluation from an asylum officer, but then must fight their cases in immigration court, where they could wait years for final decisions. According to a Syracuse University research center, the immigration court backlog has stretched past 1.8 million cases.

But under the upcoming rule, individuals making claims for protections could have their cases approved by asylum officers within 90 days and without ever having to step foot in a courtroom. Those whose asylum claims are denied by immigration officers could still appeal those denials in immigration court.

Texas said in its April lawsuit that the policy unconstitutionally “upends the entire adjudicatory system to the benefit of aliens.”

Though the final rule takes effect May 31, it won’t be implemented across the border immediately. Homeland Security Secretary Alejandro Mayorkas told reporters earlier this month the department will be “upscaling the implementation over time.”

“What we are talking about is delivering justice quickly, not compromising due process,” Mayorkas said.

The government lawyers argued Monday that the phased implementation will minimize any harms Texas would face by extending the case beyond May 31.

They noted that in addition to starting with smaller groups of migrants, DHS won’t be able to fully implement the rule until it has hired and trained more asylum officers, a process that may take months, the filing states.

Other challenges

The lawsuit is the latest challenge brought by Republican officials against Biden administration efforts to reverse the prior administration’s immigration policies.

Texas and other states have previously sued the Biden administration over its memo to narrow immigration enforcement priorities, to lift a pandemic-era border expulsion policy and to end a policy requiring migrants to wait in Mexico for decisions in their U.S. immigration cases.

In the latter case, Kacsmaryk ordered the administration to revive the so-called “Remain in Mexico” program, and that case is now pending before the Supreme Court.

The Biden administration is also facing a second lawsuit in Louisiana federal court brought by a coalition of states against the asylum officer rule, where briefing deadlines are set throughout the month of June.

Caroline Simon contributed to this report.