United States District Court

Northern District of Texas

Amarillo Division

State of Texas,

Plaintiff,

v.

Alejandro Mayorkas, et al.;

Defendants.

Case 2:22-cv-00094-Z

STATE OF TEXAS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO RECONSIDER

The State of Texas files this Response in Opposition to Defendants’ Motion to Reconsider 

the Order on Defendants’ Motion to Dismiss.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 1 of 29 PageID 1655
ii

TABLE OF CONTENTS

Table of Contents ........................................................................................................................... ii

Table of Authorities....................................................................................................................... iii

Introduction .....................................................................................................................................1

Standard...........................................................................................................................................1

Argument.........................................................................................................................................3

I. This Court correctly treated the facial allegations as true because Defendants raised an 

indirect attack on the merits............................................................................................3

A. Defendants’ “Jurisdictional Facts” are actually “Factual Merits Defenses”; 

Therefore, the Court’s Analysis was Correct .................................................................3

B. Even if Defendants’ factual attacks were considered jurisdictional, Texas proffered 

sufficient evident to rebut them. .....................................................................................5

II. Texas Has Standing. ........................................................................................................ 9

A. Texas proffered evidence sufficient to establish injury-in-fact........................................ 9

B. Texas has shown “substantial risk” of a “certainly impending” injury, and the factual 

attack does not change that standard.............................................................................10

C. Priorities is not to the contrary. ..................................................................................... 11

III. The case is not moot because Texas’s injury is ongoing. ...............................................12

A. Defendants may not raise an issue for the first time on reply. .......................................12

B. This case presents a live controversy in which Texas has a considerable stake. ...........12

IV. This Court has already rejected Defendants’ Motion to Transfer Venue under Section 

1252(e) and should not reopen that inquiry here. ...........................................................15

A. Texas has not waived any argument pertaining to 8 U.S.C. § 1252...............................15

B. Defendants’ argument is essentially the same one this Court rejected in the Motion to 

Transfer Venue..............................................................................................................16

C. This Court has jurisdiction to hear the case. .................................................................17

Conclusion .................................................................................................................................... 22

Certificate of Service..................................................................................................................... 24

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 2 of 29 PageID 1656
iii

TABLE OF AUTHORITIES

Cases Pages(s)

Arkansas v. Wilmington Tr. Nat’l Ass’n,

No. 3:18-CV-1481-L, 2020 WL 1249570, at *5 (N.D. Tex. Mar. 16, 2020) (Lindsay, J.)......15

Benavides v. Housing Authority of City of San Antonio, Tex.,

238 F.3d 667, 670 (5th Cir.2001)...........................................................................................14

Biden v. Texas,

597 U.S. 785, 797 (2022)........................................................................................................14

Black v. Panola Sch. Dist.,

461 F.3d 584, 588 n.1 (5th Cir. 2006) ....................................................................................16

Bradley v. Target Corp.,

No. 3:23-CV-00193, 2023 WL 6166475, at *2 (N.D. Tex. Sept. 21, 2023)............................16

Brown v. Bridges,

No. 3:12-CV-4947-P, 2014 WL 2777373, at *2 (N.D. Tex. June 19, 2014)............................12

Cavazos v. JP Morgan Chase Bank, N.A.,

388 F. App’x 398, 399 (5th Cir.2010)....................................................................................12

Clapper v. Amnesty Int’l USA,

568 U.S. 398, 414 n.5 (2013)................................................................................................2, 5

Coliseum Square Ass’n, Inc. v. Jackson,

465 F.3d 215, 246 (5th Cir. 2006)..........................................................................................14

Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co.,

704 F.3d 413, 425 (5th Cir. 2013)...........................................................................................13

Daniels v. Bowles,

No.Civ.A. 3:03-CV-1555, 2004 WL 1810658 (N.D. Tex. Aug. 9, 2004)................................16

Davis v. FEC,

554 U.S. 724, 734 92008 ................................................................................................ passim

Dep’t of Com. v. New York,

139 S. Ct. 2251, 2566 (2019)..............................................................................................11, 14

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) ............................................................................................................ 11

GLO v. Biden,

71 F.4th 264, 273 (5th Cir. June 23, 2023)................................................................. 2, 3, 5, 10

La. Env’t Action Network v. U.S. E.P.A.,

382 F.3d 575, 581 (5th Cir. 2004)...........................................................................................13

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 3 of 29 PageID 1657
iv

Lujan v. Defs. of Wildlife,

504 U.S. 555, 571 n.4 (1992).....................................................................................................1

Matter of Dallas Roadster, Ltd.,

846 F.3d 112, 126 (5th Cir. 2017)...........................................................................................16

McLin v. Twenty-First Judicial District,

79 F.4th 411, 415 (5th Cir. 2023)............................................................................................. 2

Mid–Continent Cas. Co. v. Eland Energy, Inc., No. 3:06–cv–1576–D, 2008 WL 80760, at *3 n. 

4 (N.D. Tex. Jan.8, 2008).......................................................................................................12

Murphy v. Hunt,

455 U.S. 478, 481 (1982) (per curiam)...................................................................................13

Neaville v. Wells Fargo Bank, N.A.,

No. 3:11-CV-97-P, 2013 WL 12124590, at *1 (N.D. Tex. June 4, 2013)................................16

Opulent Life Church v. City of Holly Springs, Miss.,

697 F.3d 279, 286 (5th Cir. 2012) ..........................................................................................14

Paterson v. Weinberger,

644 F.2d 521, 523 (5th Cir. 1981)............................................................................................ 2

Pluet v. Frasier,

355 F.3d 381, 386 (5th Cir. 2004)............................................................................................. 9

Reyes v. Nielsen,

No. 4:18-cv-3971, 2020 WL 1442349, at *1 (S.D. Tex. Feb. 6, 2020)...................................17

Rocky v. King,

900 F.2d 864, 866, 867 (5th Cir. 1990)..................................................................................13

Rodrigues v. DHS,

No. 3:20-cv-0139, 2020 WL 777278, at *1 (N.D. Tex. Feb. 18, 2020)..................................17

S.L.V. v. Rosen,

No. 5:21-cv-0017, 2021 WL 243442, at *1 (W.D. Tex. Jan. 25, 2021)...................................17

Shah v. Director,

No. 3:19-cv-1164, 2019 WL 4254139, at *1 (W.D. La. Sep. 6, 2019)......................................17

Susan B. Anthony List v. Driehaus,

573 U.S. 149, 158 (2014) ......................................................................................................... 2

Templet v. Hydro-Chem, Inc.,

367 F.3d 473, 479 (5th Cir. 2004) ............................................................................................1

Texas v. Biden,

20 F.4th 928, 971 (5th Cir. 2021)............................................................................................. 8

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 4 of 29 PageID 1658
v

Tucker v. Gaddis,

40 F.4th 289, 292 (5th Cir. 2022)..........................................................................................14

U.S. v. Students Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669, 689 n.14 (1973).................................................................................................. 2

United States Telecom Ass’n v. FCC,

825 F.3d 674, 679 (D.C. Cir. 2016)........................................................................................ 11

United States v. Texas,

599 U.S. 670 (2023)............................................................................................................... 11

Williamson v. Tucker,

645 F.2d 404, 415-16 (5th Cir. 1981)................................................................................3, 4, 5

Constitutional Provisions & Statutes

8 U.S.C. § 1252 .........................................................................................................................15, 17

8 U.S.C. § 1252(e) .........................................................................................................................15

8 U.S.C. § 1252, (2) .......................................................................................................................15

Rules & Regulations

Fed. R. Evid. 201(b).......................................................................................................................15

Fed. R. Civ. P. 12(b)(6)............................................................................................................ 1, 2, 3

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 5 of 29 PageID 1659
1

INTRODUCTION

On February 6, 2024, this Court rightfully denied Defendants’ Motion to Dismiss, stating 

“Plaintiff’s constitutional claim survives the motion to dismiss stage.” ECF 121. It is worth noting 

that Defendants have not moved to reconsider either this Court’s ruling that Texas’s claims fall 

within the zone of interests contemplated by the Immigration and Nationality Act or that Texas’s 

Appointments Clause survives a Rule 12(b)(6) motion to dismiss. ECF 121 at 7-9; ECF 123 at 3-

14. Thus, those aspects of the ruling should stand regardless of the Court’s determination of 

Defendants’ Motion to Reconsider.

Texas now opposes Defendants’ Motion to Reconsider on the grounds that (1) the Court 

applied the correct standard to a factual attack that did not, in fact, attack facts critical to 

jurisdiction; (2) even under a factual attack, Texas proffered evidence sufficient to sustain the 

Court’s decision; (3) Texas’s claims are not moot; and (4) the Court should not revisit arguments 

it already decided in the Motion to Transfer Venue. 

STANDARD

A Rule 59(e) motion “serves the narrow function of allowing a party to correct manifest 

errors of law or fact or to present newly discovered evidence” not as a “vehicle for rehashing 

evidence, legal theories, or arguments that could have been offered or raised before the entry of the 

judgment.” Templet v. Hydro-Chem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

Here, the Defendants’ 59(e) motion asks the Court to reconsider its decision that Texas 

has standing, and this Court has jurisdiction. Federal jurisdiction normally “depends on the facts

as they exist when the complaint is filed.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 571 n.4 (1992) 

(emphasis in original; citation omitted). At the time of a complaint, Plaintiffs do not need to show 

an already actualized injury—“A party facing prospective injury has standing to sue where the 

threatened injury is real, immediate, and direct.” Davis v. FEC, 554 U.S. 724, 734 92008). “An 

allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or there is 

a “‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 6 of 29 PageID 1660
2

158 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)). Further, “[A]n 

identifiable trifle is enough for standing.” U.S. v. Students Challenging Regulatory Agency Procedures 

(SCRAP), 412 U.S. 669, 689 n.14 (1973) (citation and internal quotation marks omitted).

Where subject-matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the 

burden of proof. McLin v. Twenty-First Judicial District, 79 F.4th 411, 415 (5th Cir. 2023). The 

burden of proof on standing varies with the stages of litigation. See Lujan, 504 U.S. at 562. A 

challenge to standing at this early stage of litigation should not require Texas to prove its entire 

case. Defendants claim to raise a factual attack on standing. ECF 102 at 2; ECF 123 at 1. A factual 

attack, which consists of a Rule 12(b)(1) motion accompanied by supporting evidence, challenges 

jurisdiction by challenging the jurisdictional facts alleged in the complaint. Paterson v. Weinberger, 

644 F.2d 521, 523 (5th Cir. 1981). When ruling on a factual attack, the Court must require the 

plaintiff to prove “through some evidentiary method . . . by a preponderance of the evidence that 

the court does have subject matter jurisdiction.” Id. If, however, defendants raise a “factual merits 

defense” rather than a factual jurisdictional attack, that defense is “not a response cognizable on a 

motion to dismiss where allegations in Texas’s complaint must be taken as true.” GLO v. Biden, 

71 F.4th 264, 273 (5th Cir. June 23, 2023).

A factual attack on jurisdiction under Rule 12(b)(1) can be, in reality, a challenge to the 

merits of the plaintiff’s case. Where that is true, the attack is more properly treated as a Rule 

12(b)(6) motion or a Rule 56 motion, which would give more protection to the plaintiffs. As the 

Fifth Circuit has said:

This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, 

moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to 

the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 

56—both of which place greater restrictions on the district court’s discretion. The court 

must take the plaintiff’s allegations as true when a Rule 12(b)(6) motion is raised, and in 

addition must determine that no genuine issue of material fact exists when a Rule 56 motion 

is granted. As discussed above, however, a Rule 12(b)(1) motion can be based on the 

court’s resolution of disputed facts as well as on the plaintiff’s allegations and undisputed 

facts in the record.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 7 of 29 PageID 1661
3

Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir. 1981). Thus, if the Court believes that the 

Defendants essentially raised a factual attack on the merits under the guise of a motion to dismiss, 

the Court is entitled to treat the facial allegations as true. 

In determining whether the Defendants are attacking the merits in their Motion to Dismiss, 

then the Court may apply the standard enumerated by the Fifth Circuit in GLO v. Biden, which 

recognized a “factual merits defense” where the Government accused Texas of failing to 

demonstrate that the challenged federal policy actually would lead to a net increase in 

undocumented immigrants:

The Federal Defendants respond that Texas failed to demonstrate DHS’s 2021 spending 

plan “will cause a net increase in the number of undocumented immigrants who enter the 

United States.” In other words, the Federal Defendants argue that DHS’s 2021 plan is at 

least as effective in reducing the relative amount of illegal immigration as building 

additional border barriers. This argument fails on several levels. First, it is inconsistent 

with the . . . record . . . . Second, the effectiveness of the Federal Defendants’ 2021 border 

wall plan raises a factual merits defense, not a response cognizable on a motion to dismiss 

where allegations in Texas’s complaint must be taken as true. See Lujan, 504 U.S. at 561.

GLO v. Biden, 71 F.4th 264, 272-73 (5th Cir. 2023) (emphasis added).

ARGUMENT

I. THIS COURT CORRECTLY TREATED THE FACIAL ALLEGATIONS AS TRUE BECAUSE 

DEFENDANTS RAISED AN INDIRECT ATTACK ON THE MERITS.

Defendants incorrectly argue that this Court failed to consider their factual attack on 

jurisdiction. In fact, where, as here, the Defendants attack on jurisdiction essentially goes to the 

merits of the case, this Court may treat the Defendants’ claim as a Rule 12(b)(6) or Rule 56 motion. 

Williamson, 645 F.2d at 415-16. Here, the merits are intertwined with Defendants’ alleged attack 

on jurisdiction, and this Court was correct to apply the standard that recognized this fact.

A. DEFENDANTS’ “JURISDICTIONAL FACTS” ARE ACTUALLY “FACTUAL MERITS 

DEFENSES”; THEREFORE, THE COURT’S ANALYSIS WAS CORRECT

Defendants’ jurisdictional facts implicate the merits, and as such, should be treated as 

“factual merits defenses.” The so-called jurisdictional facts that Defendants cite in their Motion 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 8 of 29 PageID 1662
4

to Reconsider include: (1) that the IFR was not being applied to asylum-seekers traveling to Texas 

destinations; (2) that the IFR did not increase immigration; (3) that the IFR did not increase the 

rate at which individuals are granted asylum; and (4) that the IFR did not cost Texas any money. 

ECF 123 at 6. None of these facts implicate jurisdiction and should not be treated as jurisdictional 

facts.

First, whether the IFR was applied to asylum-seekers traveling to Texas destinations is not, 

in fact, probative of jurisdiction. Texas claims that it is injured by any rule that increases the 

presence of unlawful immigrants in the State of Texas. ECF 105 at 13-14. The fact that the IFR 

may not name Texas destinations as applicable points of entry does not disprove Texas’s assertion 

that the IFR increases immigration to Texas. Immigrants move around once they enter the United 

States, and Texas is a top destination for the initial resettlement of refugees, second only to 

California.1 The Migration Policy Institute ranked Texas as number one in 2023—10 percent of all 

refugees granted asylum chose Texas as their initial state of settlement, and more refugees arrived 

in the United States in the first 8 months of Fiscal Year 2023 than at any time since FY 2018.2

Thus, Texas draws the reasonable inference that a rule that makes it easier to enter the United 

States will result in an increase in immigration to Texas. Defendants statement that the IFR does 

not name Texas does nothing to disprove Texas’s claim. Thus, Texas had no obligation to rebut it 

with more specificity, and the Court correctly did not require it to do so.

Second, whether the IFR increased either immigration or the rate at which asylum was 

granted goes directly to the merits of Plaintiff’s claim that the IFR is arbitrary and capricious. ECF 

1 at ¶70-77. In the complaint, Plaintiff alleged that “[t]he Defendants’ conclusion that the asylumapplication rate will not increase is unreasoned and supported by no evidence.” Id. at ¶70. The 

1 See, e.g., United States Census Bureau, State-to-State Migration Flows: 2022, at State-to-State Migration Flows 

(census.gov); United States Department of State, Report to Congress on Proposed Refugee Admissions for Fiscal Year 2023, 

Sept. 8, 2022, at 42, Table VIII, available at Report to Congress on Proposed Refugee Admissions for Fiscal Year 2023 

- United States Department of State; Appx 224-69, 311-12.

2 Migration Policy Institute, Refugees and Asylees in the United States, June 15, 2023, at Article: Refugees and Asylees 

in the United States | migrationpolicy.org.; Appx 316, 321. 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 9 of 29 PageID 1663
5

complaint also alleged that “[t]he Defendants’ conclusion that the Interim Rule does not provide 

incentives to file meritless asylum applications is unreasoned.” Id. at ¶73. Thus, these two facts—

whether the IFR increases immigration or the rate at which individuals are granted asylum—go 

directly to the merits of whether the IFR is arbitrary and capricious and should not be considered 

jurisdictional. With regard to these two facts, the Court correctly refused to engage in a “factual 

attack” determination and instead applied the standard for a “factual merits defense” as laid out 

in GLO. 71 F.4th at 272-73.

Third, whether the IFR costs Texas money is not a jurisdictional fact. Defendants do not 

dispute that the increase of unlawful immigration into Texas would constitute an injury that 

multiple courts have recognized. ECF 102 at 9-10. What Defendants attempt to recast as a 

jurisdictional fact is in truth an argument that a rule that injures Texas can avoid challenge simply 

by careful drafting that avoids mentioning Texas. It cannot. Moreover, Texas does not need to 

show an actualized injury at the time of the complaint to establish standing. Davis, 554 U.S. at 734. 

Texas asserted that it faced “prospective injury . . . where the threatened injury [was] real, 

immediate, and direct.” Id. Texas was not required to show that it was “literally certain” that it 

would be injured in the future. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013). Thus, 

the Court again correctly declined to engage in a “factual attack” analysis regarding whether the 

IFR cost Texas money. 

B. EVEN IF DEFENDANTS’ FACTUAL ATTACKS WERE CONSIDERED JURISDICTIONAL,

TEXAS PROFFERED SUFFICIENT EVIDENT TO REBUT THEM.

Defendants’ evidence that allegedly puts jurisdictional facts in controversy falls under its 

own weight, as Texas pointed out in its response to the Motion to Dismiss. ECF 105 at 13-23. If 

Defendants have not made a credible factual attack, the Court was not required to force Texas to 

rebut that ineffective attack by a preponderance of its own independent evidence. Texas rebutted 

Defendants arguments by demonstrating the flaws in Defendants’ evidence and reasoning through 

both facts and argument. Simply because Defendants believed Texas should have framed its 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 10 of 29 PageID 1664
6

argument differently or found Texas’s argument unpersuasive does not mean that its evidence was 

“largely uncontroverted.” ECF 123 at 1. Nor does the fact that Defendants believe the Court 

should have given their evidence more weight render the Court’s evidentiary standard incorrect. 

See ECF 123 at 4.

First, Defendants’ evidence that allegedly proves that the IFR did not increase migration 

to Texas—a fact that goes to the merits of the case—is deeply flawed. Defendants submitted an 

expert report as evidence that the IFR did not increase encounters at the Southwest Border. ECF 

102 at Exh. C. The expert admits that “[t]he evidence is not inconsistent with the possibility that 

changes to asylum procedure or processing can be a necessary element of a larger bundle of policies 

that, together, are sufficient to cause substantial changes in migration behavior.” ECF 102 at Exh. 

C, ¶10. The Court was well within its discretion to determine that based on Defendant’s own expert, 

“it is eminently reasonable to believe that Defendants’ changes . . . would do exactly that.” ECF 

121 at 3. Defendants cannot cry factual attack foul when their own evidence led to the Court’s 

conclusion. 

Defendants are also incorrect that Texas “pleaded no facts showing how the IFR could 

increase the number of noncitizens in Texas.” ECF 123 at 8. As explained above, Texas cited 

publicly available government documents that demonstrate how, in fact, this could occur. See supra 

nn. 1-2. Again, Defendants are not entitled to exactly the evidence or argument they believe Texas 

should make to refute their point. The Court was within its discretion to find Texas’s argument 

persuasive.

Second, Defendants’ own expert again makes Texas’s point by showing that from March 

29, 2022 until May 31, 2022, the number of border encounters increased. ECF 102 at Exh. C, ¶14 

(chart). Defendants’ own expert demonstrates that at the time of the complaint, Texas had 

evidence that the IFR had increased migration. This increase is confirmed by the data provided on 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 11 of 29 PageID 1665
7

the U.S. Customs and Border Protection website.3 The Court correctly held that this evidence 

gave Texas standing at the time of the complaint. ECF 121 at 2-3.

Even if migration decreased after the complaint, Texas still has standing because “the 

standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake 

in the outcome when the suit was filed.” Davis, 554 U.S. at 734. But, in fact, migration increased. 

There was an overall uptick in CBP encounters once Texas’s numbers were separated out from 

the other states in the public data on which Defendants’ expert relied.4 El Paso’s border encounter 

total, for example, was up 50.4 percent year over year!5 Although Defendants do not acknowledge it, 

Texas directly rebutted their expert’s evidence by recalculating the same publicly available 

numbers that the expert relied on to reach a different conclusion. See ECF 105 at 18. 

Defendants argue that this soundly rebutted evidence that total encounters decreased 

renders Texas’s claims moot “because Texas failed to establish any ongoing harm from the IFR.” 

ECF 123 at 11. Defendants claim—without basis—that “Texas submitted no contrary evidence” 

to refute their claim that the IFR did not increase border encounters.6 Again, Texas used 

Defendants’ own expert’s numbers to show that border encounters increased. See ECF 105 at 18.

Third, Defendants’ own expert rebutted Defendants’ argument that Texas has to trace 

increased migration to the IFR. Defendants’ expert stated that the story behind the numbers is 

more complicated, and migration may fluctuate as a result of seasonal changes or the 

unemployment rate for Hispanic/Latino workers. ECF 102 at Exh. C, ¶¶8-10, 23, 25. The expert 

further admitted that “[i]t is hypothetically possible that an irrelevant downward trend in border 

3 U.S. Customs and Border Protection, “Fiscal Year Stats,” Southwest Land Border Patrol Encounters (by Component), 

at Southwest Land Border Encounters (By Component) | U.S. Customs and Border Protection (cbp.gov). This data 

is partially included at Appx 326ff. 

4 U.S. Customs and Border Protection, Southwest Land Border Patrol Encounters (by Component), at Southwest Land 

Border Encounters (By Component) | U.S. Customs and Border Protection (cbp.gov); Appx 326ff; see also ECF 105 

at 18 (chart).

5 Id.

6 Mootness was arguably not directly before the Court because Defendants only raised it in a footnote in their reply 

brief on the Motion to Dismiss. ECF 114 at 3 n.2. For this reason, the Court was not obligated to address mootness 

directly in its opinion. Regardless, Texas rebutted Defendants’ evidence sufficiently to defeat their mootness 

argument.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 12 of 29 PageID 1666
8

encounters could conceal any rise in encounters that might be caused by the rule.” ECF 102-3 at 

¶20. 

Fourth, Texas does not have to trace specific asylum grants under the IFR to specific 

migrants paroled in Texas who then use Texas services to demonstrate standing. The Fifth Circuit 

has made this clear:

The Government says that’s not enough because Texas has not shown it has already issued 

any licenses to immigrants who became eligible because of MPP’s termination. Tellingly, 

however, it offers no hint as to how Texas could make that showing—nor why we should 

require it to do so. Imagine Texas had produced copies of driver’s license applications from 

paroled aliens. Would that have counted as evidence that Texas had, in the Government’s 

words, “issued a single additional ’driver’s license as a result” of ’MPP’s termination? Of 

course not: There would always remain some possibility that any given parolee would have 

been paroled even under MPP. MPP is precisely the sort of large-scale policy that’s 

amenable to challenge using large-scale statistics and figures, rather than highly specific 

individualized documents. And Texas’s standing is robustly supported by just such bigpicture evidence. There is nothing “conjectural” or “hypothetical” about that. 

Texas v. Biden, 20 F.4th 928, 971 (5th Cir. 2021) (“MPP”); see also Florida v. Mayorkas, ---

F.Supp.3d ---, 2023 WL 3398099, at *5 (N.D. Fla. May 11, 2023) (“[T]he evidence presented ... 

established that Florida suffers substantial harm—both to its sovereignty and its public fisc—when 

the federal government releases aliens into the country on ‘parole’ (or otherwise) rather than

detaining them as required by the INA.”).

As explained above, Texas proffered evidence that border encounters increased after the 

IFR and that Texas is a top destination for immigrants who enter the United States at any port of 

entry under any rule. Seesupra, Part I.A. Texas also proffered evidence of a study that found there 

were more grants of asylum in 2022 than in any other year—and the study attributed this increase 

to policies of the Biden Administration.7

Further, in the USCIS Director’s FY 2022 report to Congress in July 2023, a chart showing 

the year-over-year numbers of asylum cases received based on affirmative grants, credible fear, or 

7 Suzanne Gamboa, Biden Admin Changes Have Led to Historic Number of Court-Granted Asylum Cases, NBC News, 

Dec. 14, 2022, at Biden changes led to historic number of court-granted asylum cases (nbcnews.com); Appx 375. 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 13 of 29 PageID 1667
9

reasonable fear indicated that the overall number of cases in 2022 increased 166 percent from 124,939 

in 2021 to 331,761 in 2022.8 All types of cases increased from 2021 to 2022.9 While the chart 

showed only 759 cases attributable to the IFR cohort, the IFR cohort numbers only include a few 

months of data. Texas’s argument has never been limited to the IFR itself—Texas’s complaint is 

that the IFR will increase the number of overall asylum seekers, which will, in turn, lead to more 

unlawful immigrants in Texas, many of whom will never be processed, detained, or removed. 

Texas rebutted Defendants’ evidence that the IFR made immigration rates decrease.

Therefore, Texas proffered evidence rebutting Defendants’ factual attack on jurisdiction, 

and the Court was entitled to find that Texas’s evidence was more persuasive than Defendants’ 

evidence.

II. TEXAS HAS STANDING.

Again, if the Court did not believe Defendants proffered evidence to attack facts that were 

actually critical to jurisdiction, the Court did not need to weigh Texas’s evidence against 

Defendants’ evidence at all because the factual attack was not properly raised. In that eventuality, 

the Court could have applied the traditional standard for a motion to dismiss. However, if the 

Court believes Defendants properly mounted a factual attack on jurisdiction, Texas’s evidence is 

still enough to sustain the Court’s ruling. 

A. TEXAS PROFFERED EVIDENCE SUFFICIENT TO ESTABLISH INJURY-IN-FACT.

The Court’s ruling found that Texas had injury-in-fact because “the standing inquiry 

remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome 

when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008); Pluet v. Frasier, 

355 F.3d 381, 386 (5th Cir. 2004) (“A party must have standing at the time the complaint is filed.”). 

8 Department of Homeland Security, Asylum Application Processing: FY 2022 Report to Congress, July 17, 2023, at 6, 

available at https://www.dhs.gov/sites/default/files/2023-08/23_0717_uscis_asylum_application_processing.pdf 

(last visited Oct. 13, 2023); Appx 389. 

9 Id.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 14 of 29 PageID 1668
10

The Court correctly found that “any data subsequent to the Rule’s enactment purporting to show 

a stasis or decrease in illegal immigration is irrelevant to the standing inquiry. See Gen. Land Off. 

v. Biden, 71 F.4th 264, 272 n.12 (5th Cir. 2023) (“As this action was filed in October 2021, 

developments since then . . . will not be considered” for the purposes of defeating standing.).” 

ECF 121 at 3. The Court correctly stated that the standard for standing was whether Texas “pled 

a sufficient prospective injury.” Id. (citing Davis, 554 U.S. at 734).

Defendants urge reconsideration based on the fact that the Court did not consider their 

factual attack on whether, after the rule passed, Texas proved any increase in migration in Texas 

leading to Texas’s incurring costs. See ECF 123 at 6. But because the standard for standing is not 

concerned with subsequent facts, the Court correctly did not look to these subsequent facts. 

B. TEXAS HAS SHOWN “SUBSTANTIAL RISK” OF A “CERTAINLY IMPENDING” INJURY,

AND THE FACTUAL ATTACK DOES NOT CHANGE THAT STANDARD.

Defendants next urge reconsideration because, in their view, Texas did not prove a 

prospective injury by a preponderance of the evidence. See ECF 123 at 7-10. Defendants claim that 

they have put forward a factual attack on jurisdiction even at the moment of the complaint, and 

Texas must put forth evidence demonstrating that it had a substantial risk of injury. See id. Texas 

did present evidence that it had a substantial risk of injury. As explained above, Texas is a top 

destination for immigrants. Further, Texas submitted evidence both that immigration had 

increased since the passage of the IFR and that illegal immigration costs Texas money. See ECF 

106-106.4. Proving a substantial risk at the time of the complaint is not the same as proving standing 

in later stages of litigation. See Lujan, 504 U.S. at 562 (noting that the standing burden of proof 

varies with the stages of litigation). The burden should be at its nadir at the time of the complaint, 

and the Court correctly concluded that Texas met that burden. 

Defendants’ focus on whether Texas proved that the IFR was applied to migrants with 

destinations in Texas is misplaced. First, whether the IFR mentions Texas is not dispositive of 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 15 of 29 PageID 1669
11

whether it leads to increased illegal immigration in Texas because migrants migrate. Second, as 

explained above, Defendants’ own expert showed that from the time the IFR was announced on 

March 28, 2022 until its effective date of May 31, 2022, encounters at the Southwest Border 

marginally increased. ECF 102.3 at 4 (chart). Third, as explained above, Texas offered evidence 

that the asylum grant rate was increasing. The complaint was filed on April 28, 2022. ECF 1. Thus, 

at the time of the complaint, Texas saw border encounters and asylum grants increasing, and there 

was no data about the IFR’s operation because the complaint was filed pre-enforcement. See United 

States Telecom Ass’n v. FCC, 825 F.3d 674, 679 (D.C. Cir. 2016) (agency rule, unlike a statute, is 

reviewable without waiting for enforcement). The Court correctly held that Texas met its burden 

to show substantial risk of prospective injury.

C. PRIORITIES IS NOT TO THE CONTRARY.

Defendants claim that the Priorities case stands for the proposition that “indirect costs 

based on population changes affected by immigration policy are insufficient to satisfy Article III.”

ECF 123 at 10 (citing United States v. Texas, 599 U.S. 670 (2023) (“Priorities”). Not so. The Court 

correctly observed that Priorities 

concerned “claims that the Executive Branch should make more arrests or bring more 

prosecutions.” Texas, 599 U.S. at 680. And the Supreme Court cautioned that its 

“narrow” holding on standing is cabined to claims requesting such relief—the issue being 

redressability and its thorny implications for the separation of powers. Id. at 685.

ECF 121 at 4. Moreover, this argument “does not rest on mere speculation about the decision of 

third parties” but “on the predictable effect of Government action on the decisions of third 

parties.” Dep’t of Com. v. New York, 139 S. Ct. 2251, 2566 (2019). This Court correctly noted that 

Priorities “left untouched Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019), which held that 

indirect injury against a State can be a basis for standing to challenge federal agency action.” ECF 

121 at 5. Thus, Priorities is no barrier to Texas’s claims in this case.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 16 of 29 PageID 1670
12

III. THE CASE IS NOT MOOT BECAUSE TEXAS’S INJURY IS ONGOING.

Defendants’ arguments pertaining to mootness fail for two reasons: (1) Defendants 

mootness argument that was raised for the first time in their Reply in Support of Their Motion to 

Dismiss should not be considered, and (2) Texas has presented a live controversy, in which Texas

holds a considerable stake.

A. DEFENDANTS MAY NOT RAISE AN ISSUE FOR THE FIRST TIME ON REPLY.

This Court should decline to consider an argument raised by Defendants for the first time 

in their Reply in Support of Their Motion to Dismiss. Defendants, in a footnote in the Reply, argue 

that the case “may be” moot, after Texas merely referenced mootness in passing. ECF No. 105 at 

15; ECF No. 114 at 9 n.2. And the Court did not address the issue of mootness in its Memorandum 

Opinion and Order that denied the Motion to Dismiss. See generally, ECF No. 123.

Defendants’ untimely attempt to raise a jurisdictional argument in a footnote on reply 

should foreclose any consideration of mootness at this time. When a plaintiff raises an issue for the 

first time on reply, it is “too little, too late,” since a new argument may not be made on reply. See

Brown v. Bridges, No. 3:12-CV-4947-P, 2014 WL 2777373, at *2 (N.D. Tex. June 19, 2014) (citing 

Cavazos v. JP Morgan Chase Bank, N.A., 388 F. App’x 398, 399 (5th Cir.2010)) (“‘[a]rguments 

raised for the first time in a reply brief, even by pro se litigants . . . are waived.’”) (citations 

omitted); see also Mid–Continent Cas. Co. v. Eland Energy, Inc., No. 3:06–cv–1576–D, 2008 WL 

80760, at *3 n. 4 (N.D. Tex. 2008) (noting that “this court has repeatedly held that it will not 

consider arguments raised for the first time in reply.”).

Just like this Court did not address the issue of mootness in its Order denying the Motion 

to Dismiss (see generally, ECF No. 123.), it should again decline to do so.

B. THIS CASE PRESENTS A LIVE CONTROVERSY IN WHICH TEXAS HAS A CONSIDERABLE 

STAKE.

To the extent that this Court considers Defendants’ untimely attempt to raise mootness, 

Defendants’ arguments fail. “An action is moot where (1) the controversy is no longer live or (2) 

the parties lack a personal stake in its outcome.” Rocky v. King, 900 F.2d 864, 866, 867 (5th Cir. 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 17 of 29 PageID 1671
13

1990). “In general, a claim becomes moot ‘when the issues presented are no longer ‘live’ or the 

parties lack a legally cognizable interest in the outcome.’” La. Env’t Action Network v. U.S. E.P.A., 

382 F.3d 575, 581 (5th Cir. 2004) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)). 

Therefore, “[m]ootness applies when intervening circumstances render the court no longer 

capable of providing meaningful relief to the plaintiff.” Ctr. for Biological Diversity, Inc. v. BP Am. 

Prod. Co., 704 F.3d 413, 425 (5th Cir. 2013).

Defendants make four key arguments. First, Defendants argue that they “provided 

undisputed evidence that the IFR’s asylum-merits interview procedure had not been applied to 

any noncitizens with destinations in Texas.” ECF No. 102 at 10-11. However, grant rates are only 

part of the issue. Texas noted that any federal administrative rule that would make it easier for an 

illegal immigrant to enter the United States, in turn increases harm to Texas, that its social services 

and criminal justice system will have to take care of. See ECF No. 105 at 28.

Second, Defendants claim that their expert, “Professor Clemens, concluded that the IFR 

did not affect the number of migrants seeking to enter the United States at the southwest border.” 

ECF No. 123 at 17. However, Defendants omit—in relevant part—their expert’s own words: 

“changes to asylum procedure or processing can be a necessary element of a larger bundle of 

policies that, together, are sufficient to cause substantial changes in migration behavior.” ECF No. 

102-3 at 6. As duly noted by this Court, the act of “transfer[ring] significant authority [away] from 

immigration judges,” or “limit[ing] immigration-judge review of denials of applications,” and 

subsequently “lower[ing] [the] procedural bar to entry,” would logically provide for such a result. 

ECF No. 105 at 24; ECF No. 121 at 3.

Third, Defendants further claim that they “provided undisputed evidence that the IFR’s 

asylum-merits interview procedure has not increased the rate at which noncitizens are being found 

to have credible fear of persecution or torture or being granted asylum.” ECF No. 102 at 13-14. 

This again fails to take into account that changes to asylum procedures or processing, paired with 

other immigration levers can cause “substantial changes” in relevant migration patterns. Id. at 6.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 18 of 29 PageID 1672
14

Finally, Defendants argue that Texas has failed to produce evidence that “increased 

migration allegedly due to the IFR would cause ‘[a]n increase in aliens’ (1) applications for driver’s 

licenses, (2) incarceration, (3) usage of public education, and (4) usage of social services,’” ECF 

No. 123 at 18 (citing 105 at 33). Defendants omit three key considerations: Texas has an interest in 

avoiding: (1) “substantial changes in migration behavior” (ECF No. 102-3 at 6) . . . (2) “the 

increase of unlawful immigration into Texas,” (ECF No. 105 at 22), and (3) the “$2.926 billion” 

budget (ECF No. 105 at 21), incurred by the State of Texas to provide border security. 

However, assuming arguendo that this showing was insufficient, Texas, and this Court, 

considered the “predictable effect of Government action on the decisions of third parties.” Dep’t 

of Com. v. New York, 139 S. Ct. 2251, 2566 (2019); ECF No. 121 at 6. “As long as the parties have 

a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Tucker

v. Gaddis, 40 F.4th 289, 292 (5th Cir. 2022) (citations and internal quotations omitted); Opulent

Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 286 (5th Cir. 2012) (Knox v. Serv. Emps.

Int’l Union, Local 1000, L.Ed.2d 281 (2012)) (“A case becomes moot only when it is impossible 

for a court to grant ‘any effectual relief whatever’ to the prevailing ‘party.’”).

Because an indirect injury could be the basis for standing, and because “large-scale” 

policies are “amenable to challenge using large-scale statistics and figures, rather than highly 

specific individualized documents,” this case is not moot. Biden v. Texas, 597 U.S. 785, 797 (2022); 

see also Florida v. Mayorkas, --F.Supp.3d ----, 2023 WL 3398099, at *5 (N.D. Fla. May 11, 2023).

Nevertheless, assuming that this Court decides to accept Defendants’ mootness arguments, 

Texas would nevertheless fit an exception to mootness—the capable-of-repetition-yet-evadingreview doctrine—since the utilization of this program by Defendants would continue, and the 

future increased flow of immigration will certainly recur. See Coliseum Square Ass’n, Inc. v. Jackson, 

465 F.3d 215, 246 (5th Cir. 2006) (citing Benavides v. Housing Authority of City of San Antonio, Tex.,

238 F.3d 667, 670 (5th Cir.2001)) (noting that the doctrine applies when: “(1) the challenged action 

is too short to be fully litigated before it ceases and (2) there is a reasonable expectation that the 

same complaining party will be subject to the same action again.”).

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 19 of 29 PageID 1673
15

Ultimately, the immigration crisis continues10 and Texas’sfinancial burden increases. This 

case presents a clear controversy, in which Texas has a major stake in avoiding. 

IV. THIS COURT HAS ALREADY REJECTED DEFENDANTS’ MOTION TO TRANSFER VENUE 

UNDER SECTION 1252(E) AND SHOULD NOT REOPEN THAT INQUIRY HERE.

Defendants’ contentions regarding the applicability of 8 U.S.C. § 1252 fail for three 

reasons: (1) Texas has not waived any argument pertaining to 8 U.S.C. § 1252, (2) Defendants have 

re-raised the same arguments regarding venue that were presented in prior motions, and (3) the 

Court has already rejected Defendants’ duplicative arguments.

A. TEXAS HAS NOT WAIVED ANY ARGUMENT PERTAINING TO 8 U.S.C. § 1252.

Defendants argue that Texas failed to respond to their argument that 8 U.S.C. § 1252(e)

strips this Court of jurisdiction. ECF No. 123 at 19. Texas observed that the Court has already 

addressed this matter in Texas’s Response to Defendants’ Motion to Dismiss (ECF No. 105 at 9, 

n. 1). Notably, Defendants even explicitly concede that this issue has already been addressed by 

this Court when they note that “this Court previously rejected the applicability of section 1252(e) 

when Defendants moved to transfer venue ECF Nos. 7, 68.” ECF No. 123 at 19. Defendants have 

already raised this same argument in their Motion to Transfer (ECF No. 7 at 13-23) and Motion 

for Reconsideration (ECF No. 73 at 4-5). And the Court ruled against Defendants on both 

occasions. ECF No. 68, 78. 

Furthermore, waiver has been reserved for extreme circumstances. See e.g., Arkansas v.

Wilmington Tr. Nat’l Ass’n, No. 3:18-CV-1481-L, 2020 WL 1249570, at *5 (N.D. Tex. Mar. 16, 

2020) (Lindsay, J.) (finding waiver when the opposing party, with counsel, simply stated that the 

10 New Data Reveal Worsening Magnitude of the Biden Border Crisis and Lack of Interior Immigration Enforcement 

is subject to judicial notice because this information is publicly available online and can be accurately and readily 

determined from sources whose accuracy cannot reasonably be questioned. See Fed. R. Evid. 201(b); United States 

House of Representatives, (Jan. 18, 2024), available at, https://judiciary.house.gov/sites/evo-subsites/republicansjudiciary.house.gov/files/evo-media-document/2024-01-18-new-data-reveal-worsening-magnitude-of-the-bidenborder-crisis-and-lack-of-interior-immigration-enforcement.pdf) (noting that the “U.S. Customs and Border 

Protection . . . encountered a record-breaking 269,735 illegal aliens along the southwest border in September 2023”; 

and in the “Fiscal Year 2023 Annual Report, ICE reported that it removed 23 percent fewer illegal aliensthan in fiscal 

year 2020 and roughly 47 percent fewer than in fiscal year 2019.”).

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 20 of 29 PageID 1674
16

arguments were without merit); Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006)

(concluding that the plaintiff's failure to defend a claim in response to a motion to dismiss 

constituted abandonment” of the specific claim) (citation omitted). Waiver is an extreme remedy 

and is to be applied where a party clearly fails to respond, not when Texas has repeatedly 

responded, and the Court has already made a final determination of the matter. This is not Matter 

of Dallas Roadster, Ltd., 846 F.3d 112, 126 (5th Cir. 2017), where an entire claim was abandoned in 

multiple motion responses. Nor is it Bradley v. Target Corp., No. 3:23-CV-00193, 2023 WL 

6166475, at *2-3 (N.D. Tex. Sept. 21, 2023), where “one-sentence general ‘objection’ to [the] 

motion to dismiss” was considered a waiver. Instead, it is simply a request for reconsideration of 

the Court’s previous decision denying a transfer of venue. 

B. DEFENDANTS’ ARGUMENT IS ESSENTIALLY THE SAME ONE THIS COURT REJECTED 

IN THE MOTION TO TRANSFER VENUE.

“Litigants are expected to advance their strongest arguments the first time a court 

considers the case.” Neaville v. Wells Fargo Bank, N.A., No. 3:11-CV-97-P, 2013 WL 12124590, at 

*2 (N.D. Tex. June 4, 2013). Motions that rehash old arguments are improper and “waste a court’s 

resources.” Id. Here, this Court has not committed a manifest error of law or fact, nor have 

Defendants presented newly discovered evidence or a change in controlling law. Daniels v. Bowles, 

No. CIV.A. 3:03-CV-1555, 2004 WL 1810658, at *2 (N.D. Tex. Aug. 9, 2004) (denying a party’s 

motion for reconsideration where the party “sets forth no newly discovered evidence, alleges no 

intervening change in the law, and does not claim clear error or manifest injustice” only 

“attempt[ing] to distinguish the cases cited by this Court in a second attempt to argue the same 

points he has alleged in previous pleadings.”).

Defendants attempt to rehash old arguments repeatedly raised in this matter. Defendants 

moved to transfer venue to the District of Columbia on April 29, 2022, on the basis of lack of 

subject-matter jurisdiction, utilizing the same arguments. (ECF No. 7). The Motion was 

summarily denied on July 8, 2022 (ECF No. 68). Then, on August 5, 2022, Defendants moved for 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 21 of 29 PageID 1675
17

reconsideration of the Court’s denial of the Motion (ECF No. 78). Then, on September 14, 2022, 

this Court denied the Motion to Reconsider Ruling on Defendants’ Motion to Transfer Venue 

(ECF No. 73). Defendants should not be provided an additional attempt at the same argument. 

C. THIS COURT HAS JURISDICTION TO HEAR THE CASE.

This Court has jurisdiction to hear this case. The Defendants incorrectly claim (ECF 123 

at 13-14) that “Section 1252(e) independently precludes jurisdiction” because “regulations 

implementing § 1225(b)(1)” should be heard in the DDC and that two 2022 Supreme Court 

cases—Biden v. Texas (“MPP II”), 597 U.S. 785, 797 (2022), and Patel v. Garland, 142 S. Ct. 1614, 

1626 (2022))—require this Court to revisit its prior determination that Section 1252(e)(3) “applies 

only to individual determinations” about asylum and not programmatic challenges to the asylum 

system. (ECF 68 at 7.)11

MPP II revolved around a subsection 1252(f) not at issue here. The Defendants argue that 

MPP II applies because “1252(f) falls under the same section title as Sections 1252(a)(2)(A) and 

(e)(3).” (ECF 102 at 36.) This is irrelevant. MPP II considered only the title to subsection 1252(f), 

“Limit on injunctive relief.” However, this Court’s decision focused on different titles: § 1252, 

“Judicial review of orders of removal”; § 1252(e), “Judicial review of orders under section 

11 Even Defendants’ own cases, cited in their Motion to Transfer Venue, interpret 8 U.S.C. § 1252 the same way 

that the StatePlaintiff and the Courts did—the statute applies to individuals’ challenges. See, e.g., S.L.V. v. Rosen, 

No. 5:21-cv-0017, 2021 WL 243442, at *1 (W.D. Tex. Jan. 25, 2021) (“each plaintiff has a final order of 

removal....”); Reyes v. Nielsen, No. 4:18-cv-3971, 2020 WL 1442349, at *1 (S.D. Tex. Feb. 6, 2020) (“seeking 

review of her expedited removal from the United States....”); Shah v. Director, No. 3:19-cv-1164, 2019 WL 

4254139, at *1 (W.D. La. Sep. 6, 2019) (an individual that had been placed in “expedited removal proceedings” 

seeking a TRO, stating that there was no support for the finding that he did not have a credible fear of 

persecution); Rodrigues v. DHS, No. 3:20-cv-0139, 2020 WL 777278, at *1 (N.D. Tex. Feb. 18, 2020) (seeking a 

TRO that would “enjoin the United States Department of Homeland Security . . . from removing him to Angola, 

his native country[.]”).

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 22 of 29 PageID 1676
18

1225(b)(1)”; and § 1252(e)(3), “Challenges on validity of the system.” ECF 68 at 5-7. These titles 

were never at issue in MPP II and never considered by the Supreme Court.

Similarly, Patel, 596 U.S. at 344-346, was about the meaning of Section 1252(a)(2)(B)(i), 

which is not at issue here. Furthermore, Patel involved an individual challenge about “factual 

determinations” in a removal proceeding, Patel, 596 U.S. at 344, and did not involve a 

programmatic challenge. Furthermore, it involved the operation of an entirely different INA 

section not relevant here—8 U.S.C. § 1255.

Even if the Defendants were correct that the penumbras and emanations of MPP II and 

Patel could be read as somehow limiting jurisdiction over programmatic challenges to 

determinations under Section 1225, this Court would still have jurisdiction because the IFR does 

not implement Section 1225, which states that asylum officers initially screen defensive asylum 

applicants, after which those with a “credible fear of persecution” are referred for “further 

consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). The IFR claims this 

phrase—which does not define who conducts the “further consideration” or how—confers vast 

power to alter the nation’s asylum system through regulation. This is flawed for four reasons.

First, the phrase is not ambiguous. Congress added it to the INA when it adopted the 1996 

Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104–208, 110 

Stat. 3009–546 (1996). Statutory language is read “in context,” not in isolation, “with a view to 

[its] place in the overall statutory scheme.” Sturgeon v. Frost, 577 U.S. 424, 438 (2016). Here, that 

context is IIRIRA, which spells out how an asylum application is “further consider[ed]”: “Unless 

otherwise specified in this chapter,” a removal proceeding conducted by an immigration judge is 

“the sole and exclusive procedure for determining whether an alien may be admitted to the United 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 23 of 29 PageID 1677
19

States[.]” 8 U.S.C. § 1229a(a)(3) (emphasis added). “[T]his chapter” refers to Chapter 12 of Title 

8 of the U.S. Code—that is, the Immigration and Nationality Act, as amended. Nothing in the INA 

specifies any other procedure (i.e., nothing specifies otherwise). Certainly, the Defendants can 

point to nothing that does so. Therefore, the only method Congress has authorized for making 

asylum determinations for defensive asylum applications is through a removal proceeding 

conducted under Section 1229a, not Section 1225. Only an immigration judge may conduct a 

proceeding under Section 1229a. See 8 U.S.C. § 1229a(a)(1) (“[a]n immigration judge shall 

conduct proceedings” under § 1229a)).

Second, the IFR’s reading renders much statutory language about asylum applications 

surplusage. See Corley v. United States, 556 U.S. 303, 314–15 (2009) (statute must be construed to 

give effect to all its provisions). To that end, the IFR would erase from language indicating a judicial 

or quasi-judicial proceeding:

• The applicant has the “burden of proof.” 8 U.S.C. § 1158(b)(1)(B)(i).

• The “testimony” must satisfy “the trier of fact.” Id. § 1158(b)(1)(B)(ii)

• “[T]rier of fact” weighs “credible testimony” and “other evidence of record.” Id.

• If corroborating “evidence” is necessary, it “must be provided.” Id.

• “[T]rier of fact may base a credibility determination” on facts from a “witness,” such as 

“demeanor, candor, or responsiveness,” “plausibility,” “internal consistency,” and 

“accuracy.” Id. § 1158(b)(1)(B)(iii).

The IFR’s non-adversarial interviews do not have “triers of fact,” “testimony,” or 

“evidence of record.” “[M]ost people” reading those terms “would have understood” them to 

indicate a formal proceeding at least resembling a trial. See New Prime, Inc. v. Oliveira, 139 S. Ct. 

532, 539 (2019).

Third, the Homeland Security Act (HSA) presupposed the same reading Texas puts 

forward here. If “further consideration of the application for asylum” was meant to confer 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 24 of 29 PageID 1678
20

authority on the federal government to make up its own new form of asylum removal proceedings 

outside of EOIR, then Congress would not have included in the HSA specific language 

commanding that EOIR continue to exercise the same functions that it had been exercising before 

the HSA. (See ECF 105 at 4-5.)

Before Congress passed the HSA, Pub. L. No. 107-296 (2002), Asylum Officers’ main role 

in the defensive asylum process was only to conduct the credible fear review of aliens’ claims. 8 

U.S.C. § 1225(b)(1)(B). Any aliens found to have a “credible fear” were placed into full removal 

proceedings before immigration judges in the EOIR.

When Congress created DHS by adopting the HSA, it stated explicitly that DOJ would 

continue to “have such authorities and functions under this chapter and all other laws relating to 

the immigration and naturalization of aliens as were exercised by the [EOIR] ... on the day before 

the effective date.” 8 U.S.C. § 1103(g)(1); see Kaufman v. Mukasey, 524 F.3d 1334, 1338 (D.C. Cir. 

2008) (The HSA “expressly provides that the Attorney General has authority over certain 

immigration functions specifically relating to immigration courts”). In other words, authority that 

EOIR exercised when the HSA entered into force (on March 1, 2003) remains with EOIR.

In 451(b) of the HSA, Congress enumerated specific functions transferred from the 

Immigration and Naturalization Service (“INS”) to USCIS within DHS, only allowing USCIS to 

perform those “adjudications performed by the INS immediately before those authorities were 

transferred from DOJ to DHS.” Thus, the HSA conferred on Asylum Officers within USCIS only 

the authority to adjudicate those types of asylum claims they adjudicated on the HSA’s effective 

date, March 1, 2003 and preserved EOIR’s authority over all other adjudications. This provision 

reinforces the separation of authority in § 1103(g)(1)—DHS does not have authority over 

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 25 of 29 PageID 1679
21

adjudications EOIR performed on the HSA’s effective date, when EOIR performed final asylum 

adjudications. Accordingly, Congress vested this power in EOIR alone, and it cannot be transferred 

except by another statute. See Christensen v. Harris Cnty., 529 U.S. 576, 583 (2000) (“When a 

statute limits a thing to be done in a particular mode, it includes a negative of any other mode.”) 

(cleaned up)).

The Defendants cannot ignore the INA’s plain text and create a system for making final 

asylum determinations that facially conflicts with at least four statutory provisions. The 

Defendants’ analysis of the term “further consideration” would sunder it from the statutory 

framework and authorize them to override the remainder of the INA—including Section 1229a, 

which mandates that immigration judges must make admissibility determinations, and the HSA, 

which mandates that EOIR must have final authority over whether to admit an alien who has 

received a positive credible-fear determination. When read together, the statutory regime is 

coherent and unambiguous: DHS Asylum Officers may make initial positive credible fear 

determinations, but an immigration judge of EOIR must conduct the “further consideration”—as 

they did when the HSA was enacted.

The IFR purports to strip authority from the officers in whom it is vested by statute because 

the Defendants believe they have hit upon a better solution. The Defendants’ opinion of their 

regulation does not override Congress’s command. Section 1225 does not confer on the 

Defendants the authority to adopt the IFR. The IFR, therefore, does not implement Section 1225. 

Thus, even if Section 1252(e)(3)’s jurisdictional limitations on “orders under section 1225(b)(1)” 

could be read as applying here, it would be of no consequence, since orders issued under the IFR 

are not “orders under Section 1225(b)(1).”

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 26 of 29 PageID 1680
22

CONCLUSION

Texas respectfully requests that the Defendants’ motion to reconsider be denied.

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 27 of 29 PageID 1681
23

Dated: April 2, 2024 Respectfully submitted.

Gene P. Hamilton

America First Legal Foundation 

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

JAMES K ROGERS

America First Legal Foundation

611 Pennsylvania Ave, SE #231

Washington, DC 20003

480-570-4988

james.rogers@aflegal.org

PRO HAC VICE

Ken Paxton

Attorney General

Brent Webster

First Assistant Attorney General

Grant Dorfman

Deputy First Assistant Attorney General

Ralph Molina

Deputy Attorney General for Legal Strategy

Ryan Walters

Chief, Special Litigation Division

Texas Bar No. 254105085

/s/ Susanna Dokupil

Susanna Dokupil

Attorney-in Charge

Special Counsel

Texas Bar No. 24034419

Jacob E. Przada

Special Counsel

Texas Bar No. 24125371

Ethan Quinn Szumanski

Special Counsel 

Texas Bar No. 24123966

Office of the Attorney General

Special Litigation Division

P.O. Box 12548 

Austin, Texas 78711-2548

(512) 936-1700

Ryan.walters@oag.texas.gov

Susanna.dokupil@oag.texas.gov

Jacob.przada@oag.texas.gov

Ethan.szumanski@oag.texas.gov

Counsel for the State of Texas

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 28 of 29 PageID 1682
24

CERTIFICATE OF SERVICE

On April 2, 2024, I filed this document through the Court’s CM/ECF system, which 

automatically serves it upon all counsel of record as follows:

Brian C. Ward

Brian.c.ward@usdoj.gov

Erez Reuveni

Erez.r.reuveni@usdoj.gov

Elizabeth Tulis

Elizabeth.tulis@usdoj.gov

Erin Ryan

Erin.t.ryan@usdoj.gov

Joseph A. Darrow

Joseph.a.darrow@usdoj.gov

/s/ Susanna Dokupil

Susanna Dokupil

Case 2:22-cv-00094-Z Document 127 Filed 04/02/24 Page 29 of 29 PageID 1683