Indiana joins 18-state lawsuit challenging proposed ‘Circumvention of Lawful Pathways’ asylum rule

Indiana Attorney General Todd Rokita

Indiana Attorney General Todd Rokita is taking the lead in an 18-state lawsuit challenging a proposed rule from President Joe Biden’s administration that would generally consider those traveling through a third county before reaching Mexico and the U.S.-Mexico border to be ineligible for asylum.

The proposed “Circumvention of Lawful Pathways” rule would effectively replace a public health order that allowed officials to immediately remove migrants, including people seeking asylum. The order’s Title 42 rules expired in May.

But Rokita and other states on the lawsuit — including Florida, Iowa and Kentucky — are calling the proposed rule “some combination of a half measure and a smoke screen.”

“Indiana will be required to stretch its scarce resources even further under the Circumvention Rule,” the lawsuit says, “because the Rule will cause an influx of aliens at the border, causing Defendant to release hundreds of thousands of aliens into the United States monthly and similarly increasing the number of aliens Defendants fail to apprehend.”

The lawsuit was filed May 31 in the U.S. District Court for the District of North Dakota. Defendants include the leaders of the U.S. Department of Homeland Security, U.S. Customs and Border Protection and the U.S. Department of Justice.

The eight-count lawsuit alleges the rule exceeds the defendants’ statutory authority because it violates the 2006 Secure Fence Act and because the rule’s exceptions — including the Biden administration’s existing programs for people from Venezuela, Nicaragua, Cuba and Haiti to come to the U.S. with advance permission — are “arbitrary and capricious.”

“In a truly Orwellian twist, the federal government has depicted this latest measure as a tool for reducing illegal immigration,” Rokita said in a statement. “As a matter of fact, this new rule would make it even easier to illegally immigrate into the United States — and everyday Hoosiers right here in Indiana would pay the price.”

The case is State of Indiana, State of North Dakota, State of Alaska, State of Arkansas, State of Florida, State of Idaho, State of Iowa, Commonwealth of Kentucky, State of Mississippi, State of Missouri, State of Montana, State of New Hampshire, State of Oklahoma, State of South Carolina, State of Tennessee, State of Utah, Commonwealth of Virginia, And State of Wyoming v. Alejandro Mayorkas, in his official capacity as Secretary of Homeland Security; U.S. Department of Homeland Security; Troy A. Miller, in his official capacity as Acting Commissioner of U.S Customs And Border Protection; U.S. Customs and Border Protection; Tae Johnson, in his official capacity as Director of U.S. Immigration and Customs Enforcement; U.S. Immigration and Customs Enforcement; Ur Jaddou, in her official capacity as Director for U.S. Citizenship and Immigration Services; U.S. Citizenship and Immigration Services; Raul Ortiz, in his official capacity as Chief of the U.S. Border patrol; U.S. Border patrol; Merrick Garland, in his official capacity as Attorney General of the United States; U.S. Department of Justice; David Neal, in his official capacity as Director of the Executive Office For Immigration Review; Executive Office For Immigration Review, United States Of America, 1:23-cv-00106-CRH.

Meanwhile, groups represented by the American Civil Liberties Union filed an amended complaint against the federal government for being too harsh, calling the rule convoluted and unlawful. The case originated in 2018 as a complaint against former President Donald Trump’s administration. It was filed in the U.S. District Court for the Northern District of California.

That lawsuit is East Bay Sanctuary Covenant; Central American Resource Center; Al Otro Lado; Innovation Law Lab; Tahirih Justice Center; National Center for Lesbian Rights; Immigrant Defenders Law Center; and American Gateways v. Joseph R. Biden, President of the United States, in his official capacity; Merrick Garland, Attorney General, in his official capacity; U.S. Department of Justice; David Neal, Director of the Executive Office for Immigration Review, in his official capacity; the Executive Office for Immigration Review; Alejandro Mayorkas, Secretary of Homeland Security, in his official capacity; U.S. Department of Homeland Security; Ur Jaddou, Director of the U.S. Citizenship and Immigration Services, in her official capacity; U.S. Citizenship and Immigration Services; Troy A. Miller, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. Customs and Border Protection; Tae D. Johnson, Acting Director of Immigration and CustomsEnforcement, in his official capacity; Immigration and Customs Enforcement, 18-cv-06810-JST.