Circumvention Rule Complaint

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Introduction

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”)

3. The Circumvention Rule euphemistically characterizes the current once-in-a-

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

education systems, as merely “a substantial increase in migration.” 88 Fed. Reg. at 31,341.

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

away by re-characterizing illegal crossings as “lawful pathways.”

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

irreparable harm to Plaintiff States.

6. The Circumvention Rule claims that it will reduce illegal immigration by

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

forced to bear the cost of their presence.

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

9. Plaintiff State of Indiana is a sovereign State of the United States of America.

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.

Washington Street, I.G.C.S – 5th Floor, Indianapolis, IN 46204.

10. [[Additional states]]

11. [[Additional states]]

12. Defendants are officials of the United States government and United States

governmental agencies responsible for promulgating or implementing the Circumvention Rule.

13. Defendant Alejandro Mayorkas is the Secretary of Homeland Security and

therefore the “head” of DHS with “direction, authority, and control over it.” 6 U.S.C. § 112(a)

(2). Defendant Mayorkas is sued in his official capacity.

14. Defendant United States Department of Homeland Security (“DHS”) is a federal

cabinet department.

15. Defendant Troy A. Miller serves as Acting Commissioner of U.S. Customs and

Border Protection. He is sued in his official capacity.


16. Defendant U.S. Customs and Border Protection (“USBP”) is an agency within

DHS that is headquartered in Washington, D.C.

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.

18. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is an agency

within DHS that is headquartered in Washington, D.C.

19. Defendant Ur Jaddou serves as the Director for U.S. Citizenship and Immigration

Services. She is sued in her official capacity.

20. Defendant U.S. Citizenship and Immigration Services is an agency within DHS

that is headquartered in Camp Springs, Maryland.

21. Defendant Raul Ortiz serves as the Chief of the U.S. Border Patrol. He is sued in

his official capacity.

22. Defendant U.S. Border Patrol (“BP”) is an agency within DHS that is

headquartered in Washington, D.C.

23. Defendant Merrick Garland is Attorney General of the United States of America.

He is sued in his official capacity.

24. Defendant Department of Justice (“DOJ”) is a federal cabinet department.

25. Defendant David Neal is the Acting Director of the Executive Office for

Immigration Review. He is sued in his official capacity.

26. Defendant Executive Office for Immigration Review (“EOIR”) is an agency

within DOJ.

27. Defendant the United States of America is sued under 5 U.S.C. §§ 702–703 and

28 U.S.C. § 1346 and includes the departments and agencies thereof.


Jurisdiction and Venue

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).

Factual and Legal Background

31. States “bear[] many of the consequences of unlawful immigration.” Arizona v.

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

enormous increases in crossings:

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

number of gotaways by up to 20 percent.6 Comprehensive monitoring by Arizona law

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

Plaintiff States in violation of federal statutes.

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

[ICE] detention facility.”)

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

these imminent injuries.

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

organization Innovation Law Lab provided a sworn declaration stating:

[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

guidance to in Tijuana [Mexico] … end up in detention centers in Louisiana and Mississippi,

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

interest in its territory and the welfare of its citizens.

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

trafficking in Indiana’s communities, requiring additional expenditure by law enforcement. In

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

46. According to a report from the Government Accountability Office, as many as

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

for English Language Learner services and state tuition support.

47. [[INDIVIDUALIZED ALLEGATIONS ABOUT EACH STATE]]

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

services for aliens that would otherwise not have to be spent.

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

encourages a greater influx of unauthorized aliens into Plaintiff States.

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

alone not be a basis for an immigration enforcement action.”18

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

actually is happening in the United States.” Id. at 67:22-68:5.

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-

sovereign, and proprietary interests.

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

communicable diseases—of all types—when illegal border crossings (including crossings of

“covered aliens”) reach the elevated levels induced by the Circumvention Rule. This presents a

serious threat to the public health of Plaintiff States.

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.

Discovery in this case, as in Florida, will confirm it.

CLAIMS FOR RELIEF

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

of statutory right.” 5 U.S.C. § 706(2)(A), (C).

66. The Circumvention Rule exceeds Defendants’ statutory authority because the

INA strictly limits Defendants’ exercise of the parole power.

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

unlawful entry into the United States in advance. Id.at 31,314.

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.

69. In 1996 Congress “specifically narrowed the executive’s discretion under §

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

headings and titles “may be used to interpret its meaning”).

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

focused on DHS’s operational circumstances rather than an individual alien’s circumstances.”

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

allegations stated above.


73. 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

of statutory right.” 5 U.S.C. § 706(2)(A), (C).

74. The Circumvention Rule exceeds Defendants’ statutory authority because it

violates the Secure Fence Act.

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

for the bill was then-Senator Biden.20

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

allegations stated above.

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

of statutory right.” 5 U.S.C. § 706(2)(A), (C).

80. The Circumvention Rule exceeds Defendants’ statutory authority because it

violates the Major Questions Doctrine.

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

Corp., 529 U.S. 120, 160 (2000).

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

many years about immigration enforcement and policy.

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

allegations stated above.

87. 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).

88. “[A]gency action is lawful only if it rests on a consideration of the relevant

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—

that commenters forecast a loss in Medicaid coverage”).

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

independently sufficient reasons, including the following:

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

forecasts or explain their failure to forecast.

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

unlawful aliens in the United States.

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

exit passports, visas, and airline tickets extend[ed] for kilometers.”26

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

enforce the law.

100. Plaintiff States have overwhelming reliance interests in federal enforcement of

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,

USCIS-2022-0016-12295 at 8 (Mar. 27, 2023), https://tinyurl.com/3jyd4hnd. Plaintiffs’ State

budgets and resource allocations are determined in reliance on Defendants’ continued

enforcement of immigration law. Nevertheless, Defendants explicitly disclaimed any reliance by

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.

See Regents of the Univ. of Cal., 140 S. Ct. at 1913-14.

101. Third, Defendants failed to consider or arbitrarily rejected obvious alternatives to

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

prior actions and act as if their prior positions don’t exist.


104. Sixth, the Circumvention Rule is arbitrary and capricious because its rationales are

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

incentivize illegal immigration. Indeed, that the Administration’s immigration policies

incentivize high amounts of illegal immigration is widely recognized internationally. For

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

“‘exhibit a naiveté from which ordinary citizens are free.’” Id.

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

allegations stated above.

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).

108. The Circumvention Rule’s “rebuttable presumption” is arbitrary and capricious

for two reasons:

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

stretched to the breaking point.

111. Second, the rebuttable presumption has so many exceptions that it might as well

be called an “always-rebutted presumption.” The Circumvention Rule includes the following

exceptions: “medical emergency”; “imminent and extreme threat to life or safety”; being a

“victim of a severe form of trafficking in persons”; or any other circumstance whenever

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

allegations stated above.

113. The APA provides that courts must “hold unlawful and set aside agency action”

that is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

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

APA. 5 U.S.C. § 553.

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

a rule of agency organization, procedure, or practice otherwise exempt from notice-and-comment

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

Rule’s provisions to maritime contexts).

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

subject to an additional round of notice-and-comment before taking effect, the Circumvention

Rule must be “held unlawful and set aside” as it was promulgated “without observance of

procedure required by law.” 5 U.S.C. § 706(2)(D).

121. Furthermore, considering the magnitude of the Circumvention Rule’s impact on

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

governments . . . to provide meaningful and timely input in the development of regulatory

proposals containing significant Federal intergovernmental mandates.” (emphasis added)).

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

allegations stated above.


124. The Circumvention Rule is a rule that can be issued, if at all, only by notice-and-

comment rulemaking under the APA. 5 U.S.C. § 553.

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,

USCIS-2022-0016-12295 at 8 (Mar. 27, 2023), https://tinyurl.com/3jyd4hnd. Defendants ignored

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

factual justification for rejection).

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

rule. See, e.g., [[CITATIONS??, or cut paragraph]].

127. Thus, the Circumvention Rule must be “held unlawful and set aside” as it was

promulgated “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

PRAYER FOR RELIEF

NOW, THEREFORE, Plaintiffs request an order and judgment:

1. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule is arbitrary and

capricious and unlawful under the APA;


2. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule is contrary to law

and in excess of statutory authority under the APA;

3. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule violates the APA

because it was promulgated without notice and comment;

4. Declaring, under 28 U.S.C. § 2201, that the Circumvention Rule violates the INA and

the Secure Fence Act;

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;

7. Preliminarily and permanently enjoining, without bond, Defendants from applying

the Circumvention Rule;

8. Awarding Plaintiffs their reasonable fees, costs, and expenses, including attorneys’

fees, pursuant to 28 U.S.C. § 2412; and

9. Granting any and all other such relief as the Court finds appropriate.

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