Circumvention Rule Complaint
Circumvention Rule Complaint
Circumvention Rule Complaint
1. Defendants have caused an apocalypse at the border. In the leadup to the end of
COVID-19 border restrictions under Title 42 at midnight on May 12, Border patrol “[a]gents
have been encountering over 10,000 migrants a day since Monday [May 8], and there are no
signs of that slowing down with the looming end of Title 42, which is expected to bring an even
bigger wave with it.”1 To put things in perspective, according to a former DHS Secretary under
the Obama administration, 1,000 crossings in a day is a “relatively bad number” and 4,000 daily
crossings is a “crisis.”2
2. Yet, in the midst of the worst border crisis in our nation’s history, Defendants are
attempting to implement a final rule that will degrade further our nation’s border security and
make it even easier to illegally immigrate into the United States. Circumvention of Lawful
Pathways, 88 Fed. Reg. 31,314 (May 16, 2023) (the “Circumvention Rule”)
century border crisis whereby millions of aliens have illegally crossed the border, flooded
American communities, and stretched to the breaking point state and local social services and
Strikingly, the Circumvention Rule fails to acknowledge the root cause of the crisis: the
Administration’s reckless open borders policies. And rather than address that root cause, the
Circumvention Rule is little more than an academic exercise that tries to define the problem
4. Defendants claim that the Circumvention Rule will deter illegal border crossings,
decrease the number of new unlawful aliens in the United States, and reduce reliance on human
1
Adam Shaw and Bill Melugin, Border Patrol chief authorizes release of migrants into US without court dates as
Title 42 ends, FOX NEWS, (May 11, 2023), https://tinyurl.com/32vfur78.
2
Tim Hains, Obama DHS Secretary Jeh Johnson: "We Are Truly In A Crisis" On Southern Border, REAL CLEAR
POLITICS, (Mar. 29, 2019), https://tinyurl.com/4ef9wsys.
smuggling networks. The truth, however, is that the Circumvention Rule is some combination of
a half measure and a smoke screen. It is riddled with exceptions, and it is part of the Biden
Administration’s broader effort to obfuscate the true situation at the Southwest Border.
5. Rather, the Biden Administration’s unlawful parole policies will increase the
number of unlawful aliens in the United States by guaranteeing a quicker path to quasi-legal
status in the United States (with accompanying work permits and access to entitlement programs
and social services). And the toothless Circumvention Rule will do little to prevent the resulting
introducing a “rebuttable presumption of asylum ineligibility for certain noncitizens who neither
avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or
other protection in a country through which they travel.” 88 Fed. Reg. at 31,314. However, the
Circumvention Rule itself gives the game away, explaining that aliens who use the CBP One
app3 to “schedule” their entry into the United States at a specific Port of Entry (POE) will be
“exempted from this rule’s rebuttable presumption on asylum eligibility.” 88 Fed. Reg. at
31,318. The real purpose of the Circumvention Rule is to incentivize “an increasing number of
migrants” to use the CBP One app to make bogus asylum claims, all while avoiding the bad
optics of crowds of illegal aliens “wait[ing] in long lines of unknown duration at the POEs.” Id.
7. The Circumvention Rule references a new “process” that is unlawful and would
allow vast numbers of aliens to enter the country and receive instant work authorization and
quick access to public benefits. These aliens, who previously would have had to cross the border
illegally, will still lack lawful status in the United States (though with a false imprimatur of
3
CBP One is a mobile application that serves as a portal for a variety of U.S. Customs and Border Protection (CBP)
services. Through guided questions, the app directs users to the appropriate CBP services.
legality, thanks to the Biden Administration’s unlawful procedures), and the States will still be
8. This Court should therefore declare the Circumvention Rule unlawful, vacate it,
and enjoin Defendants from implementing it, together with their other associated and unlawful
parole practices.
Parties
Indiana sues to vindicate its sovereign, quasi-sovereign, and proprietary interests, including its
interests in protecting its citizens. Indiana brings this suit through its Attorney General, Todd
Rokita. He is authorized by Indiana law to sue on the State’s behalf. His address is 302 W.
12. Defendants are officials of the United States government and United States
therefore the “head” of DHS with “direction, authority, and control over it.” 6 U.S.C. § 112(a)
cabinet department.
15. Defendant Troy A. Miller serves as Acting Commissioner of U.S. Customs and
17. Defendant Tae Johnson serves as the senior official performing the duties of the
director of U.S. Immigration and Customs Enforcement. He is sued in his official capacity.
19. Defendant Ur Jaddou serves as the Director for U.S. Citizenship and Immigration
20. Defendant U.S. Citizenship and Immigration Services is an agency within DHS
21. Defendant Raul Ortiz serves as the Chief of the U.S. Border Patrol. He is sued in
22. Defendant U.S. Border Patrol (“BP”) is an agency within DHS that is
23. Defendant Merrick Garland is Attorney General of the United States of America.
25. Defendant David Neal is the Acting Director of the Executive Office for
within DOJ.
27. Defendant the United States of America is sued under 5 U.S.C. §§ 702–703 and
28. This Court has subject-matter jurisdiction over this case because it arises under
the Constitution and laws of the United States. See 28 U.S.C. §§ 1331, 1346, 1361; 5 U.S.C. §§
701-06.
29. An actual controversy exists between the parties within the meaning of 28 U.S.C.
§§ 2201(a), and this Court may grant declaratory and injunctive relief, vacatur, and other relief
under 28 U.S.C. §§ 2201-02, 5 U.S.C. §§ 705-06, 28 U.S.C. § 1361, and its inherent equitable
powers.
30. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1) because (1)
Defendants are United States agencies or officers sued in their official capacities, (2) [[the State
of Indiana is a resident of this judicial district]], (3) no real property is involved, and (4) a
substantial part of the events or omissions giving rise to the Complaint occur within this judicial
district. See Atlanta & F.R. Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1892); Ass’n of
Cmty. Cancer Ctrs. v. Azar, 509 F. Supp. 3d 482 (D. Md. 2020).
United States, 567 U.S. 387, 397 (2012). They are, however, limited in their ability to “engage
in” their own immigration “enforcement activities.” Id. at 410. The States thus rely significantly
on the federal government to fulfill its duties under the immigration laws, particularly when
Congress has created mandatory obligations or otherwise limited the federal government’s
discretion.
32. Record numbers of aliens have entered the United States unlawfully since January
20, 2021.
33. DHS’s own statistics show the dramatic increases in the number of crossings into
the United States. Indeed, current levels of illegal crossings are at their highest levels in at least
two decades, and perhaps ever. The following is DHS’s own chart graphically showing these
Source: https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters
34. Furthermore, between Fiscal Year 2021 and March 15, 2023, DHS had recorded
1.4 million “gotaways,” or illegal aliens who evaded border patrol agents.4 There were 385,000
4
Guy Benson, Crisis: CBP Chief Reveals Shocking 'Got-Away' Numbers at Border Hearing Boycotted By
Democrats, Townhall, (Mar. 16, 2023), https://tinyurl.com/34uxxw37.
gotaways between October 1, 2022 and March 15, 2023, 5 and given the accelerated pace of
illegal border crossings this year, it is likely that there will be more than 1 million recorded
gotaways in FY2023. What’s worse, these DHS numbers are likely significant underestimates.
Border Patrol Chief Raul Ortiz has estimated that these numbers underestimate the actual
enforcement using an advanced camera system observing a large section of the border showed
that “for the period from July 2020 to January 2021, only 27.6% of undocumented persons
crossing the southern border were apprehended by DHS personnel.” Louisiana v. Centers for
Disease Control & Prevention, --- F.Supp.3d ----, 2022 WL 1604901, at *6 (W.D. La. May 20,
2022). These observations took place when the border was not facing a once-in-a-century crisis
of overwhelming numbers of illegal crossings. The proportion of gotaways may very well be
higher now.
35. Defendant Raul Ortiz, who is Chief of the Border Patrol, has admitted under oath
that when citizens of other countries perceive that immigration policy has become more
favorable to them, they are more likely to cross U.S. borders illegally. Florida. v. United States,
No. 21-CV-1066, ECF No. 78-3 at 59:12-60:5, 67:22-68:5, 171:13-172:9, 173:7-12 (N.D. Fla.
2021). Because the Circumvention Rule makes it easier for aliens with non-meritorious asylum
claims to be released in the United States, it will induce a significant increase of illegal
immigration into the United States. Tens of thousands of these aliens will be released into the
36. Reducing the likelihood that an alien will be released into the United States
reduces the number of aliens who attempt to enter the United States illegally. Texas v. Biden, 554
5
Id.
6
Id.
F. Supp. 3d 818, 834, 847-48 (N.D. Tex. 2021); cf. Zadvydas v. Davis, 533 U.S. 678, 713 (2001)
(Kennedy, J., dissenting) (“An alien ... has less incentive to cooperate or to facilitate expeditious
removal when he has been released, even on a supervised basis, than does an alien held at an
37. Since 1982, the Supreme Court has mandated that States provide public education
to school-age aliens not lawfully in the United States. Plyler v. Doe, 457 U.S. 202, 230 (1982).
As a direct result of the influx of migrants that the Circumvention Rule will cause, some of
whom will be minors, the Plaintiff States will be compelled to spend additional money on
education for these additional aliens. The Circumvention Rule is thus a direct, but-for cause of
38. The population of potential asylum applicants includes a large number of school-
age children.7 After these school-age children enter the United States, they disperse across the
United States and force local schools to incur significant additional costs to educate them. 8 On
information and belief, school-age aliens processed under the Circumvention Rule have moved
to every Plaintiff State. It is the position of the DOJ and Department of Education (“ED”) that
schools cannot inquire into the immigration status of students,9 and the Plaintiff States therefore
do not have data on the exact number of such school-age children who have settled in each State.
However, on information and belief, DHS tracks detailed information about the age, location,
7
CBS News, Despite COVID-19 Pandemic, Texas Border Pop-Up School For Young Asylum Seekers Thrives, CBS
NEWS, (Dec. 1, 2020), https://www.cbsnews.com/dfw/news/covid-19-texas-pop-up-school-asylum-seekers-thrives/.
8
Polo Sandoval, Kimberly Berryman and Ray Sanchez, ‘It’s all behind us now.’ 1,700 migrant children see hope in
nation’s largest school system, CNN, (Sep. 20, 2022), https://www.cnn.com/2022/09/19/us/migrants-new-york-
school-year; Czarinna Andres, Adams Administration Preparing to Enroll 1,000 Migrant Children in City Schools
Who Were Bused From Texas, JACKSON HEIGHTS POST, (Aug. 19, 2022), https://jacksonheightspost.com/adams-
administration-preparing-to-enroll-1000-migrant-children-in-city-schools-who-were-bused-from-texas; Reema
Amin, New York City grapples with influx of new asylum-seeking students, CHALKBEAT NEW YORK, (Oct. 18,
2022), https://ny.chalkbeat.org/2022/10/18/23411736/nyc-asylum-seekers-students-budget-bilingual-teachers.
9
Dear Colleague Letter from Catherine E. Lhamon, Assistant Secretary, ED, Philip H. Rosenfel, Deputy
General Counsel, ED, and Jocelyn Samuels, Acting Assistant Attorney General, DOJ (May 8, 2014),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405.pdf.
and immigration status of school-age asylum applicants. Information about the extent of harm
that the Plaintiff States are suffering from additional education expenses is therefore in the sole
possession of Defendants and will come to light during discovery in this case.
39. Asylum applicants often do not remain in the State in which they first crossed into
the United States. In a 2019 declaration, Stephen Manning of the immigration activist
[T]he clients served by Law Lab’s programs do not [sic] complete their
immigration case in a single jurisdiction. It is possible that a client would move
seamlessly between our program sites—and thus between different judicial
circuits—as their case progresses. A person fleeing persecution might receive a
legal orientation and services at a workshop supported by Law Lab in Tijuana,
Mexico; obtain release on bond or parole from a detention center in Texas with
assistance from our BorderX project; and complete their asylum application at a
Law Lab-run legal workshop in Atlanta, Georgia. Many persons served by Law
Lab programs move between jurisdictions throughout the lifetime of their asylum
case as well. In my experience, such movement between jurisdictions is common
for asylum seekers.
40. Manning further declared that “asylum seekers that Law Lab has provided
despite the fact that they entered the US to request asylum in the Ninth Circuit.” Accordingly,
Law Lab maintains offices throughout the United States, including in Portland, Oregon; Atlanta,
Georgia; San Diego, California; Kansas City, Missouri and San Antonio and El Paso, Texas.
41. The presence of these aliens in each State violates each State’s quasi-sovereign
42. The Circumvention Rule will also cost the States millions, as explained in further
detail below.
Indiana
43. Plaintiff Indiana is injured by the Circumvention Rule. Indiana will be required to
stretch its scarce resources even further under the Circumvention Rule, 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 initially. The Circumvention Rule will create increased crime and drug
addition, by incentivizing further illegal immigration, the Circumvention Rule will force Indiana
to expend limited resources on education, healthcare, public assistance and general government
services.
44. The increase in illegal aliens arriving in Indiana has forced Indiana to incur
additional expenses. Indiana has roughly 207,000 illegal aliens, including their children; about
53% are uninsured and about 31% of them have incomes below the poverty line. 10 The cost per
alien to taxpayers is $4,451.11 This total cost of illegal aliens and their children amounts to
$921,276,750.12 Indiana bears the cost of illegal immigration through education programs, state
medical costs, incarceration of illegal aliens who commit crimes, and welfare programs.
45. The Indiana Department of Education provides a portion of the State’s Title III
(of the Elementary and Secondary Education Act of 1965 as amended by the Every Student
Succeeds Act of 2015) appropriation to support schools and school districts experiencing an
influx of immigrant students. Based upon the influx of immigrant students in eight school
districts, the Indiana Department of Education made Title III appropriations in the amount of
$183,738.40 for the 2021-2022 school year, in addition to the per-pupil state tuition support
10
Federation for American Immigration Reform, The Fiscal Burden of Illegal Immigration, (Mar. 8, 2023), at 40,
https://tinyurl.com/yzdh3rvk; Unauthorized Immigrant Population Profiles, Migration Policy Institute,
https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/IN (53% uninsured, 31% below the
poverty line).
11
Id.
12
Id.
payment.13 The 3,151 additional children arriving between October 2020 and September 2022
would cost Indiana an average of $1,332,852.51 for English Language Learner services
assuming the children are all school-age and require English Language Learner services. 14 This
does not include the additional expenditures by Indiana for state tuition support provided for all
children enrolled in public schools, which would amount to almost $27.3 million for the 3,151
additional children.15
5,000 family units settled in Indiana between July 2021 and February 2022 as a result of the
Biden Administration’s similar Parole + ATD policy. 16 If each family unit consisted of two
people, the State of Indiana has the burden of providing education, medical care, and other
benefits to 10,000 aliens entering under Parole + ATD. If each family unit consists of just one
child, the annual cost to the State of Indiana to educate them would be as high as $45,467,551.20
All Plaintiffs
48. The Circumvention Rule will result in tens or hundreds of thousands of aliens
unlawfully entering the United States, who would otherwise not be able to gain entry. This, in
turn, will cause Plaintiff States to spend money on healthcare, detention, education, and other
13
INDIANA DEPT. OF ED., 2021-2023 TITLE III IMMIGRANT INFLUX ALLOCATIONS (2023)
https://www.in.gov/doe/files/2021-2023-TIII-Immigrant-Influx-Allocations.pdf.
14
OFFICE OF REFUGEE RESETTLEMENT, Unaccompanied Children Released to Sponsors by State (March 9,
2023), https://www.acf.hhs.gov/orr/grant-funding/unaccompanied-children-released-sponsors-state.
15
Ind. Code § 20-43-3-8 (school corporation’s foundation amount); Ind. Code § 20-43-6-3 (formula for calculating
basic tuition support).
16
U. S. GOVERNMENT ACCOUNTABILITY OFFICE, SOUTHWEST BORDER: CHALLENGES AND
EFFORTS IMPLEMENTING NEW PROCESSES FOR NONCITIZEN FAMILIES (Sept. 2022),
https://www.gao.gov/assets/gao-22-105456.pdf.
49. For example, the States are required to spend state monies on Emergency
Medicaid, including for unauthorized aliens. 42 C.F.R. § 440.255(c). Plaintiff States’ emergency
medical providers deliver millions of dollars in medical services to illegal aliens each year.
These costs are not fully reimbursed by the federal government or the aliens themselves. The
Circumvention Rule necessarily increases the number of aliens in the States who are subject to
receiving such medical care at the expense of Plaintiff States’ healthcare institutions.
50. Furthermore, under federal law, aliens who have been paroled into the United
States become eligible for a variety of benefits after five years. 17 These benefits include
Medicaid; SNAP (commonly referred to as “food stamps”); and TANF (commonly referred to as
“welfare” payments). Because these benefits are paid by State agencies and are partially financed
from State budgets, the Circumvention Rule will increase the States’ costs because higher
numbers of aliens being paroled into the United States will cause a higher number of individuals
claiming benefits in each Plaintiff State. This will cause quantifiable financial harm to the States,
and the exact magnitude of those harms will become clear in discovery, when the federal
government produces statistics about the numbers of aliens being paroled and the number of
aliens settling in each Plaintiff State. For present purposes, however, even “a dollar or two” of
injury satisfies Article III. Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 289
(2008).
51. By ignoring the requirements of the INA and Secure Fence Act of 2006, and thus
facilitating the entry of unauthorized aliens into the United States, the Circumvention Rule
17
See 8 U.S.C.A. § 1641(b)(4) (defining a “qualified alien” as “an alien who is paroled into the United States under
[8 U.S.C. § 1182(d)(5)] for a period of at least 1 year”); 8 U.S.C. § 1612 (2)(L) (making eligible for food stamps
aliens who have been “’qualified aliens’ for a period of 5 years or more”); 8 U.S.C. § 1613(a) (making qualified
aliens eligible for “any Federal means-tested public benefit ... 5 years” after “the date of the alien's entry into the
United States”).
52. The Biden Administration continues to publicly tout its lax border policies. As
Defendant Secretary Mayorkas recently boasted, “[u]nlawful presence in the United States will
53. Defendant Border Patrol Chief Raul Ortiz admitted under oath that, since
President Biden’s election, the number of aliens trying illegally to enter the United States has
increased, and that internal Customs and Border Patrol documents state that “since President
Biden was elected ... aliens illegally entering the United States perceive that they will be able to
enter and remain in the United States.” Id. at 59:12-60:5. Chief Ortiz agreed that “aliens who cite
favorable immigration policy as a reason to come to the United States are perceiving what
54. The Circumvention Rule contributes to the perception that the border is open and
that immigration policy has become more favorable to aliens illegally crossing the southern
border. The Circumvention Rule thus incentivizes increased immigration into the Plaintiff States.
Increased illegal immigration imposes on the States through increased law enforcement,
education, medical, and other costs, as explained supra ¶¶ [[CITE TO INDIVIDUAL STATE
PARAGRAPHS.]] All of this constitutes injury to the States and to their sovereign, quasi-
55. Chief Ortiz also admitted under oath that “the southern border is currently in
crisis” and that “the crisis that is currently ongoing at the southern border [is] making the border
less safe for Americans and aliens alike.” Ortiz Depo. at 40:18-21, 53:9-13. Specifically, Chief
Ortiz admitted that criminal trafficking organizations incentivized by the border crisis created by
the Biden Administration “are putting ... border communities in danger,” such as by locating
18
Secretary Mayorkas Delivers Remarks at the U.S. Conference of Mayors, U.S. Dep’t of Homeland Security (Jan.
20, 2022), https://www.dhs.gov/news/2022/01/20/secretary-mayorkas- delivers-remarks-us-conference-mayors, but
it has since been removed.
“stash houses in neighborhoods” and causing “damage to property [of] ranchers and farmers,”
including damage to “fences” and “livestock that are lost when these smugglers drive through
their property,” and that they “have little regard for the safety of the community out there.” Id. at
241:6-242:3.
56. Chief Ortiz further admitted that criminal trafficking organizations “continue to
flood the border area with ... narcotics… We’ve had more agents assaulted this year than we ever
have, and we continue to see increase in firearm seizures.” Id.at 243:7-9, 15-17.
57. The Circumvention Rule contributes to this increase in lawlessness and criminal
activity in border regions, and also within the Plaintiff States. This causes sovereign harm to
Plaintiff States, because “[t]he States have a legally protected sovereign interest in ‘the exercise
of sovereign power over individuals and entities within the relevant jurisdiction[, which]
involves the power to create and enforce a legal code.’” Wyoming ex rel. Crank v. United States,
539 F.3d 1236, 1242 (10th Cir. 2008); see also Hawaii v. Trump, 859 F.3d 741, 765 (9th Cir.
2017), vacated on other grounds, 138 S. Ct. 377 (2017) (similar); Virginia ex rel. Cuccinelli v.
Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (collecting cases where state was found to possess
sovereign standing on this basis). Indeed, the “defining characteristic of sovereignty” is “the
power to exclude from the sovereign’s territory people who have no right to be there.” Arizona,
567 U.S. at 417 (Scalia, J., concurring in part and dissenting in part).
58. Because illegal aliens settle in all Plaintiff States, encouraging a greater influx of
unauthorized aliens further increases law enforcement costs in all Plaintiff States, including costs
related to coordinated activity between federal and state law enforcement agencies in the pursuit
of suspected unauthorized aliens. The increased lawlessness at the border thus also injures the
States’ proprietary interests because it increases the States’ law enforcement and incarceration
costs.
59. The Circumvention Rule will allow a far greater number of aliens to enter the
United States. Such aliens rarely leave the United States of their own accord, and Defendants
rarely remove such aliens, even after their asylum or other immigration claims have been denied.
The Circumvention Rule will therefore increase Plaintiff States’ costs of providing emergency
medical care to these individuals who would otherwise never have been allowed into the United
States. Additionally, the Circumvention Rule encourages a greater influx of unauthorized aliens
into Plaintiff States, further increasing the number of unauthorized aliens for whom Plaintiff
States must bear the cost of emergency medical care, education, and other social services.
60. The Circumvention Rule will increase illegal immigration into the United States.
Some of the additional illegal aliens will migrate into each of the Plaintiff States, and some of
those aliens will commit crimes in each of the Plaintiff States. The increased number of illegal
aliens in the Plaintiff States will thus also increase crime and criminal justice expenses in
Plaintiff States, thus injuring the States through increased law enforcement, incarceration, and
crime-prevention costs. The increased crime will also injure the citizens of Plaintiff States.
61. In addition, Defendants will be unable to adequately screen, mitigate, and treat for
“covered aliens”) reach the elevated levels induced by the Circumvention Rule. This presents a
62. In Florida. v. United States, No. 21-CV-1066 (N.D. Fla. 2021), which asserts
claims related to the Administration’s failure to follow immigration law, discovery produced by
the federal government showed that from November 1, 2021 to July 4, 2022 the number of aliens
that DHS released into the United States who had listed Florida addresses as their place of final
destination and who had failed to report back to DHS for further immigration proceedings was
47,984 individuals. On information and belief, the vast majority of these aliens were paroled into
the United States after making asylum claims. During Florida’s deposition of Defendant Ortiz,
he admitted that this was “a large number” that was “concerning.” Id. at 148:11-14.
63. DHS keeps detailed statistics about grants of asylum, about the aliens it allows
into the United States, about their intended destinations, about their residential addresses, and
about their immigration status. Additionally, DHS (or a DHS contractor) monitors a subset of
asylum applicants using global positioning system tracking devices, telephonic reporting, or a
smartphone application called SmartLink.19 On information and belief, aliens allowed into the
United States under the Circumvention Rule have settled, and continue to settle, in every single
Plaintiff State. Furthermore, on information and belief, the number of aliens settling in each state
is higher because of the Circumvention Rule, and aliens who would have been approved under
the old asylum system will be eligible for benefits sooner than they otherwise would have been.
COUNT I
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C)
Rule in Excess of Defendants’ Statutory Authority
(Parole)
64. Plaintiff States repeat and incorporate by reference all the Complaint’s allegations
stated above.
19
https://www.ice.gov/detain/detention-management
65. Under the APA, a court must “hold unlawful and set aside agency action” that is
“not in accordance with law” or is “in excess of statutory . . . authority[] or limitations, or short
66. The Circumvention Rule exceeds Defendants’ statutory authority because the
67. The Circumvention Rule relies entirely on creating so-called “lawful, safe, and
orderly pathways” that “are authorized separate from this rulemaking.” 88 Fed. Reg. at 31,410.
The Circumvention Rule would add a regulation that exempts aliens from the Circumvention
Rule’s rebuttable presumption of ineligibility for asylum if the alien “[w]as provided appropriate
authorization to travel to the United States to seek parole, pursuant to a DHS-approved parole
process.” Id. at 31,322. As the Circumvention Rule preamble explains, those pathways are DHS
policies to programmatically grant parole to large classes of aliens, expanding on DHS’s prior
unlawful programmatic parole programs for aliens from Venezuela, Cuba, Haiti, and Nicaragua.
E.g. id. at 31,315-17. And, as the preamble further explains, those “lawful ... pathways” will also
include the programmatic grant of parole to aliens who use the CPB One app to schedule their
68. But DHS lacks the authority to create a “parole process” involving the
programmatic grant of parole to entire classes of aliens. And because the Proposed Rule relies on
an unlawful abuse of DHS’s very limited parole authority, the Proposed Rule itself is unlawful.
1182(d)(5)(A) to grant ‘parole into the United States’” precisely because of Congress’s “concern
that parole under § 1182(d)(5)(A) was being used by the executive to circumvent congressionally
established immigration policy.” Cruz-Miguel v. Holder, 650 F.3d 189, 199 & n.15 (2d Cir.
2011). Congress made crystal clear its intent that its 1996 amendment to the parole statute was a
limit on the use of parole: the section heading in IIRIRA that makes this amendment is titled
“LIMITATION ON USE OF PAROLE.” IIRIRA, Pub. L. No. 104–208, 110 Stat 3009, § 602
(1996) (emphasis added); see also Ram v. I.N.S., 243 F.3d 510, 514 n.3 (9th Cir. 2001) (section
70. Parole “authority is not unbounded: DHS may exercise its discretion to parole
applicants ‘only on a case-by-case basis for urgent humanitarian reasons or significant public
benefit.’” Biden v. Texas, 142 S. Ct. 2528, 2543 (2022) (quoting 8 U.S.C. §1182(d)(5)(A)). DHS
“cannot use that power to parole aliens en masse,” Texas v. Biden, 20 F.4th 928, 997 (5th Cir.
2021) rev’d in part on other grounds, Biden, 142 S.Ct. at 2528, which is precisely what the
Circumvention Rule would do. And thus, the Circumvention Rule is unlawful for the same
reason that DHS’s Parole+ATD program was recently declared unlawful: because “it is largely
Florida. v. United States, --- F.Supp.3d , 2023 WL 2399883, at *30 (N.D. Fla. Mar. 8,
2023)
71. Additionally, the Proposed Rule, and the CBP One app on which it relies for
implementation, would turn the expedited removal process on its head. Instead of being the
intended procedure for quickly removing aliens from the United States, it turns the process into
one for expediting the entry of illegal aliens into the United States to remain indefinitely.
COUNT III
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C)
Rule in Excess of Defendants’ Statutory Authority
(Secure Fence Act)
72. Plaintiff States repeat and incorporate by reference each of the Complaint’s
“not in accordance with law” or is “in excess of statutory . . . authority[] or limitations, or short
75. In 2006, Congress passed the Secure Fence Act, which requires the Secretary of
Homeland Security to “take all actions the Secretary determines necessary and appropriate to
achieve and maintain operational control over the entire international land and maritime borders
of the United States.” Secure Fence Act of 2006, Pub. L. No. 109–367, 120 Stat 2638 (2006)
(codified as 8 U.S.C. § 1701 note). The bill specifically defines “operational control” to mean
“the prevention of all unlawful entries into the United States, including entries by terrorists,
other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” Id. (emphasis
added).
76. The Secure Fence Act remains in force. It enjoyed bipartisan support in both
houses of Congress, and passed in the Senate by a vote of 80 to 19. Indeed, among those voting
77. The Circumvention Rule violates the Secure Fence Act because, as discussed
above, rather than preventing unlawful entries into the United States, it incentivizes them.
COUNT IV
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C)
Rule in Excess of Defendants’ Statutory Authority
(Major Questions Doctrine)
https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?
20
congress=109&session=2&vote=00262#top
78. Plaintiff States repeat and incorporate by reference each of the Complaint’s
79. Under the APA, a court must “hold unlawful and set aside agency action” that is
“not in accordance with law” or is “in excess of statutory . . . authority[] or limitations, or short
81. Under the Major Questions Doctrine, an executive action is unlawful if it presents
a question of “vast ‘economic and political significance,’” that Congress has not expressly
assigned to the Executive Branch the power to take that action. See Alabama Ass'n of Realtors v.
Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (“We expect Congress to speak
clearly when authorizing an agency to exercise powers of vast economic and political
significance.”) (cleaned up); West Virginia v. EPA, 142 S.Ct. 2587, 2608 (2022); King v.
Burwell, 576 U.S. 473, 486 (2015); Food & Drug Admin. v. Brown & Williamson Tobacco
82. As discussed supra ¶¶ [[CITE]] the legislative history makes clear that
Defendants’ actions are the opposite of what Congress intended when it amended the INA to
limit the parole power. The illegal immigration of tens of thousands of aliens into the country is a
question of vast political significance, as evidenced by the intense debate in this country over
83. The Circumvention Rule relies in large part on the CBP One app (the “App”).
One major component of the App is allowing aliens to apply for Advance Travel Authorizations
(ATAs). The ATA process requires that aliens submit biometric and biographic data, which
Defendants use to decide whether to approve the alien for travel to a port of entry (POE), where
the alien may request parole into the United States. Visas work almost the exact same way--they
do not give an alien the right to enter the United States, but only to travel to a POE and request
admission, at which time a CBP officer decides whether the alien is admissible or not. Except,
the visa process enacted by Congress is stricter and much more involved. The visa form is longer
and requires more information, and it has stricter compliance requirements. For example, to get a
visa, aliens must 1) pay a substantial fee; 2) appear in person for a visa interview at the embassy
or consulate; and for immigrant visas, 3) submit to a comprehensive medical exams; 4) comply
with strict vaccination requirements; 5) prove they have the financial means to support
themselves, or instead get a U.S. sponsor to sign an affidavit of support that legally obligates the
sponsor to financially support the alien for the rest of the alien’s life (and which allows state and
local governments to sue the sponsor to get reimbursed for government support provided to the
alien, whereas the financial support form for an ATA does not impose a lifetime commitment on
the sponsor and does not allow states to sue to recover expenditures).
84. For countries with populations representing a low risk of overstaying in the
United States, Congress has created the Electronic System for Travel Authorization ("ESTA")
program which allows visa-free travel for temporary non-immigrant travelers. Upon information
and belief, virtually all of the aliens who will make use of the App and provisions of the
Circumvention Rule come from non-ESTA countries. Yet, even though Congress has clearly
established that these aliens do not qualify for visa-free travel to the United States, Defendants
have created by executive fiat what is essentially a parallel system for visa-free immigration to
the United States for aliens from countries with populations with high risk of overstaying in the
United States. The Circumvention Rule circumvents the process that Congress has created for
immigration into the United States—it completely evades numerous limits that Congress has
imposed, such as numerical quotas and caps, visa security requirements, required visa fees,
security vetting, and affidavits of support to prove that aliens have sufficient financial support
from friends and family to ensure that they will not become a burden on public resources.
85. Not only has Congress never clearly authorized the Circumvention Program, it
has already established an entire system for allowing aliens into the country that is completely at
odds with the Circumvention Rule and the App, and which Defendants are ignoring. The
Circumvention Rule and App are therefore unlawful under the Major Questions Doctrine.
COUNT V
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C)
Arbitrary and Capricious Agency Action
(Circumvention Rule)
86. Plaintiff States repeat and incorporate by reference each of the Complaint’s
87. The APA prohibits agency actions that are “arbitrary, capricious, an abuse of
factors” and “important aspects of the problem.” Michigan v. EPA, 576 U.S. 743, 750-52 (2015)
(requiring “reasoned decisionmaking”). This means agencies must “examine all relevant factors
and record evidence.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir.
2017).
89. For starters, an agency cannot “entirely fail[ ] to consider an important aspect of
the problem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983); see also Am. Wild Horse, 873 F.3d at 931 (“the Service’s Finding of No Significant
Impact not only failed to take a ‘hard look’ at the consequences of the boundary change, it
averted its eyes altogether”); Gresham v. Azar, 363 F. Supp. 3d 165, 177 (D.D.C. 2019) (“The
bottom line: the Secretary did no more than acknowledge—in a conclusory manner, no less—
90. Further, agencies must actually analyze the relevant factors. “‘Stating that a factor
was considered ... is not a substitute for considering it.’” State v. Biden, 10 F.4th 538, 556 (5th
Cir. 2021). The agency must instead provide more than “conclusory statements” to prove it
considered the relevant statutory factors. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2127 (2016).
91. The Circumvention Rule’s provisions are arbitrary and capricious for multiple
92. First, Defendants failed to estimate or account for the costs to the States of the
Circumvention Rule, such as the cost of increased illegal immigration caused by the Rule, and
the presence of much greater numbers of paroled aliens with non-meritorious asylum claims who
were induced to enter the United States because of the Circumvention Rule.
93. However, the Circumvention Rule never even attempts to quantify or forecast
many essential factors, such as 1) how many aliens will gain entry under the Circumvention Rule
(including through the CPB One app); 2) how many aliens will still attempt unlawfully to cross
the border without using the app (and thus become “gotways”); 3) how many aliens will be
deterred from illegally crossing; and 4) how many aliens will be incentivized to cross because of
the Circumvention Rule and the app. These are all “important aspects of the problem” that must
be understood before adopting the Circumvention Rule. Michigan v. EPA, 576 U.S. 743, 750-52
(2015) (requiring “reasoned decisionmaking”). Nor can Defendants claim that such figures are
unknowable. The Circumvention Rule is littered with specific forecasts of how many aliens will
illegally cross the border when Title 42 restrictions are rescinded. E.g. 88 Fed. Reg. at 31,316,
31,331, 31,341, 31363-4 (forecasting daily crossings of 11,000). If Defendants can forecast the
number of crossings when Title 42 is canceled, then there is no reason they cannot forecast
crossing numbers under the Circumvention Rule. But they do not even attempt to make such
94. By Defendants’ admission, “the fact that [aliens making asylum claims] can wait
in the United States for years before being issued a final order denying relief, and that many such
individuals are never actually removed, likely incentivizes migrants to make the journey north.”21
Yet, Defendants also admit that under a recent rule implementing allegedly faster asylum
procedures, they “do not yet have the capacity, and do not expect to have the capacity in the near
term, to process the large number of migrants expected to cross the border through the system.” 22
In light of this lack of capacity, Defendants never adequately explain how the Circumvention
Rule will solve the problem it is supposed to address. If Defendants lack the capacity to apply the
new procedures to process aliens’ asylum claims at the border quickly, then this means that
aliens using the CPB One app will have to be admitted into the United States for their asylum
claims to be processed under the old system that, by Defendants’ admission, takes years.
95. If allowing aliens entry into the United States to await a years-long asylum
process “incentivizes migrants to make the journey north,”23 and if the Circumvention Rule (by
Defendants’ admission) will facilitate the entry of aliens to start that years-long asylum process,
then this means that the Circumvention Rule and the CPB One app will incentivize increased
rates of illegal immigration into the United States. The only rational conclusion, therefore, is that
the purpose of the Circumvention Rule is to facilitate and incentivize the entry of illegal aliens
21
Notice of Proposed Rulemaking, Circumvention of Lawful Pathways, 88 Fed. Reg. 11704, 11,716 (Feb. 23, 2023);
see also id. at 11,729.
22
Id. at 11,717.
23
Id. at 11,716
into the United States—a purpose directly contrary to the clear language of the INA and to
Congress’s intent.
96. Our republican form of government cannot function when the Executive Branch
subverts the will of the people by doing the exact opposite of what Congress has commanded.
President Biden said, “the American system ... depends on the rule of law.” 24 Yet, the
Circumvention Rule makes a mockery of the rule of law by facilitating the presence of countless
97. Indeed, that the purpose of CBP One is to encourage migration is widely
recognized in Latin America. For example, Enrique Lucero, municipal director of migration for
the Mexican city of Tijuana, recently commented during a media interview that “[w]e believe
that CBP One has encouraged migration,” not least because the number of aliens arriving in
Tijuana who intend to migrate into the United States illegally increased by 181 percent after CBP
One went live.25 Similarly, in Cuba, following the rollout of CBP One, “lines inside Cuba to get
98. Second, the Circumvention Rule fails to consider the States’ reliance interests.
The government must “turn square corners in dealing with the people.” DHS v. Regents of the
Univ. of Cal., 140 S. Ct. 1891, 1909 (2020). When an agency changes course, as Defendants
have done here, they must “be cognizant that longstanding policies may have ‘engendered
serious reliance interests that must be taken into account.’” Id. at 1913 (quoting Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). “It would be arbitrary and capricious
24
Joseph Biden, Remarks by President Biden on Standing up for Democracy, WhiteHouse.Gov, (Nov. 2, 2022,
https://tinyurl.com/2zcrkb3t.
25
Cinthya Gómez, “Creemos que CBP One ha fomentado la migración”: Aumenta 181% llegada de migrantes a
Tijuana en búsqueda de asilo en EEUU, TELEMUNDO 10 SAN DIEGO, (Feb. 10, 2023), https://tinyurl.com/5bcka98e.
26
Todd Bensman, Mexico in Chaos after First Month of Biden’s ‘CBP One’ Work Permit Giveaway Program,
CENTER FOR IMMIGRATION STUDIES, (Feb. 7, 2023), https://tinyurl.com/3yp584pw.
to ignore such matters.” Id. (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009)).
99. The Circumvention Rule repeatedly considers and defers to the interests of
foreign countries. Yet, has the audacity to claim that “[t]he Departments are unaware of any
existing policies altered by this rule in which States have a substantial reliance interest.” 88 Fed.
Reg. at 31,438. Defendants’ cursory dismissal of the existence of any reliance interests misses
the mark. Their analysis fails to account for the actual real-world effects of the current
immigration system and how States might have legitimately relied on Defendants’ obligation to
immigration law. Specifically, many of the Plaintiff States submitted a comment explaining that
the Circumvention Rule will incentivize additional illegal immigration and thus cause increased
costs “through education programs, state medical costs, incarceration of illegal aliens who
commit crimes, and welfare programs.” Comment Submitted by Indiana and 21 other States,
the States and Plaintiff States’ determinations about how they would marshal and distribute their
resources to deal with the number of unauthorized aliens entering their states. The
Circumvention Rule is arbitrary and capricious because it utterly ignores these reliance interests.
the Circumvention Rule, such as by hiring more Border Patrol agents to patrol the border or by
implementing in good faith the Migrant Protection Protocols (“MPP”) (and thus sending most
aliens from third countries back to Mexico to await asylum decisions). The Circumvention Rule
claims at one point that it will not increase illegal immigration into the United States, yet it later
admits that “the purpose and effect of this rule is not to return noncitizens to Mexico pending
their removal proceedings” but instead “to incentivize migrants, including those intending to
seek asylum, to use lawful, safe, and orderly pathways to enter the United States.” Yet, the
“lawful” pathway on which the Circumvention Rule mostly relies is to unlawfully parole aliens
en masse into the United States. And because that exercise of the parole power is unlawful, then
all aliens admitted under that illegal exercise are unlawfully present in the United States. Thus,
the purpose of the Circumvention Rule is to increase the number of illegal aliens in the United
States.
102. Fourth, Defendants ignored statutory factors, and relied upon factors Congress
did not direct it to consider, by completely failing to address the immigration consequences of
the Circumvention Rule. IIRIRA and the Secure Fence Act are designed to reduce crossings. Yet
the Circumvention Rule utterly ignores this aspect of the problem and will instead increase
crossings.
103. Fifth, Defendants failed to justify their deviation from prior practice. The APA
prohibits Defendants from “whistl[ing] past [this] factual graveyard” to “evade[]” their
“established pattern of agency conduct and formalized positions.” Am. Wild Horse Pres.
Campaign, 873 F.3d at 923-27; see also Dillmon v. Nat’l Transp. Safety Bd., 588 F.3d 1085,
1089 (D.C. Cir. 2009) (APA requirements ensure that an agency’s “prior policies and standards
are being deliberately changed, not casually ignored”). Yet Defendants fail to grapple with their
obviously pretextual. The actions of the President, Secretary Mayorkas, and other Administration
officials have made clear that the intent of the Administration’s immigration policies is to
example, the President of Mexico called President Biden the “migrant president” and observed
that the Biden Administration’s policies and rhetoric greatly incentivize illegal immigration. 27
Human traffickers have recognized this as well. Internal Mexican government assessments “state
that gangs are diversifying methods of smuggling and winning clients as they eye U.S. measures
that will ‘incentivize migration.’”28 The presence of such blatant pretext is enough to render the
Circumvention Rule arbitrary and capricious. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2575-
76 (2019). Accepting Defendants’ description of the Circumvention Rule requires this Court to
105. Seventh, the Circumvention Rule is focused on facilitating the entry into the
United States of aliens making asylum claims, yet it fails to account for the reality that the vast
majority of asylum claims have no merit. Between FY2008 and the third quarter of 2021, the
grant rate for asylum matters originating from credible fear referrals made by Asylum Officers
(AOs) was only 12.69%. Furthermore, in absentia removal order rates for such cases are very
high. This means that most aliens being placed into immigration court proceedings following a
positive credible fear determination by AOs are being ordered removed. The current system is
rife with fraud and frivolous claims. Rather than make the system stricter to solve these
27
Dave Graham, “Exclusive: ‘Migrant president’ Biden stirs Mexican angst over boom time for gangs,” Reuters,
Mar. 10, 2021 https://reut.rs/3vKlk1x.
28
Id.
problems, the Circumvention Rule inexplicably relaxes requirements even further, thus making it
even easier for aliens with meritless claims improperly to gain entry into the United States.
COUNT VI
Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C)
Arbitrary and Capricious Agency Action
(Rebuttable Presumption)
106. Plaintiff States repeat and incorporate by reference each of the Complaint’s
107. As explained above, the APA prohibits agency actions that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)
(A).
109. The Proposed Rule’s “rebuttable presumption” against asylum is pointless. It will
not decrease real illegal immigration rates and will likely increase them for two reasons.
110. First, the rebuttable presumption only applies to aliens who illegally cross the
border without using the CBP One app to schedule their crossing ahead of time. Entries
facilitated by the CBP One app will undoubtedly continue to increase dramatically, increasing
the total number of unlawful aliens in the States. The only aspect that will change is that DHS
will no longer record those entries as unlawful. The Circumvention Rule is an accounting
exercise allowing the Administration to claim that illegal entries have decreased. In reality,
though, the Circumvention Rule will drastically incentivize increased illegal immigration into the
United States and lead to an explosion in the population of unlawful alien residents in the States.
This will impose enormous new demands on State social service and education systems already
111. Second, the rebuttable presumption has so many exceptions that it might as well
exceptions: “medical emergency”; “imminent and extreme threat to life or safety”; being a
adjudicators in their complete discretion decide that there exist “other exceptionally compelling
circumstances.” 88 Fed. Reg. at 31,318. It is well-known that various NGOs and legal
organizations coach illegal aliens in Mexico on which “magic words” they must utter to gain
entry into the United States. The exceptions to the “rebuttable presumption” just provide a new
list of magic words for coaching aliens. Furthermore, the catch-all provision allowing
adjudicators to make exceptions whenever they want renders the rebuttable presumption entirely
toothless.
COUNT VII
Administrative Procedure Act, 5 U.S.C. § 706(2)(D)
Lack of Notice and Comment – Logical Outgrowth
112. Plaintiff States repeat and incorporate by reference each of the Complaint’s
113. The APA provides that courts must “hold unlawful and set aside agency action”
114. The APA requires agencies to publish notice of all “proposed rule making” in the
Federal Register, id. § 553(b), and to “give interested persons an opportunity to participate in the
rule making through submission of written data, views, or arguments,” id. § 553(c). Thus, the
Circumvention Rule can be issued, if at all, only via notice-and-comment rulemaking under the
115. Such requirements “are not mere formalities” but rather “are basic to our system
of administrative law.” NRDC v. Nat’l Highway Traffic Safety Admin., 894 F.3d 95, 115 (2d Cir.
2018). “Section 553 was enacted to give the public an opportunity to participate in the rule-
making process. It also enables the agency promulgating the rule to educate itself before
establishing rules and procedures which have a substantial impact on those who are regulated.”
U.S. Dep’t of Labor v. Kast Metals Corp., 744 F.2d 1145, 1153 n.17 (5th Cir. 1984); see also
NRDC, 894 F.3d at 115 (notice and comment serves “the public interest by providing a forum for
the robust debate of competing and frequently complicated policy considerations having far-
reaching implications and, in so doing, foster reasoned decisionmaking”); Spring Corp. v. FCC,
315 F.3d 369, 373 (D.C. Cir. 2003) (notice and comment “ensures fairness to affected parties[]
and provides a well-developed record that enhances the quality of judicial review”).
116. The Circumvention Rule is not an interpretive rule, general statement of policy, or
rulemaking.
117. The Circumvention Rule was issued as a final rule, thus becoming effective
without additional notice or comment (except for those portions dealing with the extension of the
118. The Circumvention Rule makes six changes from the initial Proposed Rule that
would go into effect without notice and comment. See 88 Fed. Reg. at 31,319-21 (summarizing
seven major changes, six of which would go into effect without notice and comment).
“[A]gencies may not ‘pull a surprise switcheroo’” between a proposed and final rule. Allina
Health Servs. v. Sebelius, 746 F.3d 1102, 1108 (D.C. Cir. 2014). When a final rule has major
changes from the proposed rule, the “logical outgrowth” test governs whether an agency must
submit the rule again for notice-and-comment before it may take effect. “As the Supreme Court
recently explained [in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007)], the object
of the logical outgrowth test is one of fair notice.” Owner-Operator Indep. Drivers Ass’n, Inc., v.
Fed. Motor Carrier Safety Admin., 494 F.3d 188, 209 (D.C. Cir. 2007) (citations omitted).
119. Defendants never even claim that the Circumvention Rule is a logical outgrowth
of the Proposed Rule. However, the six changes to the Circumvention Rule are not a “logical
outgrowth” of the Proposed Rule because a “reasonable commenter” would not “have anticipated
that such ... requirement[s] would be promulgated,” and the Circumvention Rule did not provide
notice “sufficient to advise interested parties that comments directed to the controverted aspect
of the final rule should have been made.” First Am. Discount Corp. v. Commodity Trading
Futures Ass’n, 222 F.3d 1008, 1015 (D.C. Cir. 2000) (cleaned up). The Circumvention Rule
therefore may not take effect until commenters are provided “their first occasion to offer new
and different criticisms which the agency might find convincing.” Ass’n of Battery Recyclers,
Inc. v. EPA, 208 F.3d 1047, 1058-59 (D.C. Cir. 2000) (citation omitted).
120. Because the logical outgrowth test requires that the Circumvention Rule be
Rule must be “held unlawful and set aside” as it was promulgated “without observance of
State authorities, it was incumbent on Defendants to consult with the States on both the wisdom
and implementation of such a far-reaching endeavor, and failure to do so was not harmless error.
See United States v. Johnson, 632 F.3d 912, 931 (5th Cir. 2011) (“An overreaching harmless
error doctrine would allow the agency to inappropriately ‘avoid the necessity of publishing a
notice of a proposed rule and perhaps, most important, [the agency] would not be obliged to set
forth a statement of the basis and purpose of the rule, which needs to take account of the major
comments—and often is a major focus of judicial review.’”); 2 U.S.C. § 1534(a) (“[e]ach agency
shall . . . develop an effective process to permit elected officers of State, local, and tribal
122. Under these circumstances, Defendants’ failure to comply with the APA’s notice
and comment provisions is fatal to the Circumvention Rule. Johnson, 632 F.3d at 928-29
(“Without good cause, we must enforce Congress’s choice in favor of the traditional, deliberative
rulemaking process.”).
COUNT VIII
Administrative Procedure Act, 5 U.S.C. § 706(2)(D)
Notice and Comment
(Failure to Address Comments)
123. Plaintiff States repeat and incorporate by reference each of the Complaint’s
125. The Circumvention Rule failed to take account of the States’ comments, either
summarily rejecting them without substantive explanation, or outright ignoring them. For
example, a coalition of 22 states that includes most of the Plaintiffs submitted a 15-page
comment that raised general concerns, as well as five specific comments about serious
deficiencies in the proposed rule. See Comment Submitted by Indiana and 21 other States,
much of the States’ comment and, for the aspects of the comment that they purported to address,
they summarily disposed of the States’ comment in a cursory, dismissive fashion that refused to
offer any substantive legal or factual basis for dismissing the States’ comment. E.g., 88 Fed. Reg.
at 31,438 (cursorily rejecting States’ reliance concerns without offering substantive legal or
126. Furthermore, the Circumvention Rule similarly fails to take account of other
important comments from immigration subject-matter experts that point out a number of
unlawful and misguided aspects of the proposed rule, and which remain unchanged in the final
127. Thus, the Circumvention Rule must be “held unlawful and set aside” as it was
1. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule is arbitrary and
3. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule violates the APA
4. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule violates the INA and
5. Postponing the effective date of the Circumvention Rule pursuant to 5 U.S.C. § 705;
6. Holding unlawful and vacating the Circumvention Rule under 5 U.S.C. § 706;
8. Awarding Plaintiffs their reasonable fees, costs, and expenses, including attorneys’
9. Granting any and all other such relief as the Court finds appropriate.