United States District Court

Northern District of Texas

Amarillo Division 

STATE OF TEXAS,

Plaintiff,

v.

ALEJANDRO MAYORKAS, in his official 

capacity as Secretary of Homeland 

Security, et al., 

Defendants. 

Case 2:22-cv-00094

Brief in Support of Plaintiff’s Motion for Preliminary Injunction

Dated May 23, 2022. Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

AARON F. REITZ

Lead Counsel

Deputy Attorney General for Legal Strategy

Texas Bar No. 24105704

aaron.reitz@oag.texas.gov

LEIF A. OLSON

Special Counsel

Texas Bar No. 24032801

leif.olson@oag.texas.gov

GENE P. HAMILTON

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

Counsel for the State of Texas

Case 2:22-cv-00094-Z Document 21 Filed 05/23/22 Page 1 of 39 PageID 312
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Contents

I. Introduction...................................................................................................... 8

II. Facts................................................................................................................ 8

A. Expedited removal and credible fear screenings.......................... 8

B. Immigration judges and asylum officers.....................................11

C. The Appointments Clause. ..........................................................12

D. Parole. ...........................................................................................13

E. The Notice of Proposed Rulemaking and the Interim Final Rule.

......................................................................................................14

1. The NPRM and the States’ comment. ..............................14

2. The Interim Final Rule. ....................................................15

F. Costs that illegal immigration imposes upon Texas. .................17

1. Driver’s licenses.................................................................17

2. Education...........................................................................17

3. Healthcare. ........................................................................18

4. Law enforcement and correctional costs ..........................19

III. Standard......................................................................................................20

IV. Argument.....................................................................................................21

A. Texas is Likely to Succeed on the Merits....................................21

1. The Interim Final Rule violates the Homeland Security 

Act. .....................................................................................22

2. The Interim Final Rule violates the Appointments Clause.

............................................................................................26

3. The Interim Final Rule violates the parole authority. ....28

4. The Interim Final Rule is arbitrary and capricious. .......31

B. Without a preliminary injunction, Texas will suffer irreparable 

harm. ............................................................................................35

C. The balance of the equities and public interest favor Texas......37

V. Conclusion.....................................................................................................38

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Cases

Abbott Laboratories v. Gardner

387 U.S. 136 (1967) .......................................................................................20

Alabama Assn. of Realtors v. Dept. of Health & Human Servs.

141 S. Ct. 2485 (2021) ...................................................................................38

Bostock v. Clayton County

140 S. Ct. 1731 (2020) ...................................................................................22

Buckley v. Valeo

424 U.S. 1 (1976) ...............................................................................13, 26, 28

City of Arlington, Tex. v. FCC

569 U.S. 290 (2013) .......................................................................................21

Clark v. Martinez

543 U.S. 371 (2005) .......................................................................................28

Corley v. United States

556 U.S. 303 (2009) .......................................................................................24

Daniels Health Sciences LLC v. Vascular Health Sciences LLC

710 F.3d 579 (5th Cir. 2013) .........................................................................38

Dept. of Homeland Security v. Regents of the Univ. of California

140 S. Ct. 1891 (2020) .......................................................................20, 21, 32

Dept. of Homeland Security v. Thuraissigiam

140 S. Ct. 1959 (2020) ..................................................................................... 9 

Edmond v. United States

520 U.S. 651 (1997) .................................................................................26, 27

Encino Motorcars, LLC v. Navarro 

579 U.S. 211 (2016) .......................................................................................32

Freytag v.Commissioner 

501 U.S. 868 (1991) .......................................................................................27

Hibbs v. Winn

542 U.S. 88 (2004) .........................................................................................24

Case 2:22-cv-00094-Z Document 21 Filed 05/23/22 Page 3 of 39 PageID 314
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Janvey v. Alguire

647 F.3d 585 (5th Cir. 2011) .........................................................................20

Jennings v. Rodriguez

138 S. Ct. 830 (2018) .....................................................................................29

Lucia v. S.E.C.

138 S. Ct. 2044 (2018) ........................................................................... passim

Make the Road New York v. Wolf

962 F.3d 612 (D.C. Cir. 2020) .......................................................................23

Maryland v. King 

567 U.S. 1301 (2012) .....................................................................................35

Michigan v. EPA

576 U.S. 743 (2015) .......................................................................................21

Motor Vehicle Mfrs. Assn. of U.S. Inc. v. State Farm Mutual Auto. Ins. Co., 

463 U.S. 29 (1983) ...................................................................................21, 31

Natl. Federation of Independent Businesses v. Dept. of Labor

142 S. Ct. 661 (2022) .....................................................................................21

New Prime, Inc. v. Oliveira

139 S. Ct. 532 (2019) .....................................................................................25

Nken v. Holder 

556 U.S. 418 (2009) .......................................................................................37

Ryder v. United States

515 U.S. 177 (1995) .......................................................................................13

Sturgeon v. Frost

577 U.S. 424 (2016) .......................................................................................24

Texas v. Biden (“Texas MPP dist. ct.”)

554 F. Supp. 3d 818 (N.D. Tex. 2021).........................................14, 33, 34, 36

Texas v. Biden (“Texas MPP Stay”)

10 F.4th 538 (5th Cir. 2021)....................................................................37, 38

Case 2:22-cv-00094-Z Document 21 Filed 05/23/22 Page 4 of 39 PageID 315
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Texas v. Biden (“Texas MPP”)

20 F.4th 928 (5th Cir. 2021)........................................................14, 31, 34, 36

Texas v. Biden (“Texas Title 42”), No. 4:21-cv-0579

2022 WL 658579 (N.D. Tex. Mar. 4, 2022)........................................... passim

Texas v. United States (“Texas DAPA”)

809 F.3d 134 (5th Cir. 2015) .............................................................17, 36, 37

Texas v. United States

524 F. Supp. 3d 598 (S.D. Tex. 2021) ...............................................20, 21, 36

Texas v. United States

555 F. Supp. 3d 351 (S.D. Tex. 2021) ...........................................................37

Texas v. United States

86 F. Supp. 3d 591 (S.D. Tex. 2015) .............................................................36

United States v. Arthrex, Inc.

141 S. Ct. 1970 (2021) .............................................................................13, 27

United States v. Escobar, No. 2:17-cr-529

2017 WL 5749620 (S.D. Tex. Nov. 28, 2017)................................................37

United States v. Martinez-Fuerte

428 U.S. 543 (1976) .......................................................................................37

Utility Air Regulatory Grp. v. EPA

573 U.S. 302 (2014) .......................................................................................20

Valley v. Rapides Parish School Bd.

118 F.3d 1047 (5th Cir. 1997) .......................................................................37

Wages & White Lion Investments, L.L.C. v. U.S. Food & Drug Admin.

16 F.4th 1130 (5th Cir. 2021)........................................................................32

Washington v. Reno

35 F.3d 1093 (6th Cir. 1994) .........................................................................37

Winter v. Nat. Res. Def. Council, Inc.

555 U.S. 7 (2008) ...........................................................................................37

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Statutes

5 U.S.C. § 705 ....................................................................................................38

5 U.S.C. § 706 ....................................................................................................20

8 U.S.C. § 1101 ..................................................................................................11

8 U.S.C. § 1103 ............................................................................................11, 22

8 U.S.C. § 1158 ..................................................................................9, 11, 12, 25

8 U.S.C. § 1182 .......................................................................................... passim

8 U.S.C. § 1225 .......................................................................................... passim

8 U.S.C. § 1229a ........................................................................................ passim

Other Authorities

Comment of State Attorneys General

DHS Rulemaking Docket USCIS-2021-0012, cmt. no. 4980 (Oct. 21, 2021) 

available at regulations.gov/comment/USCIS-2021-0012-4980............14, 15

David A. Martin, Immigration Policy and the Homeland Security Act 

Reorganization: An Early Agenda for Practical Improvements, 80 

Interpreter Releases 601, 604 (Apr. 28, 2003) .............................................23

H.R. Rep. No. 104-469 (1996)......................................................................14, 30

Rules

Inspection and Expedited Removal of Aliens; Detention and Removal of 

Aliens; Conduct of Removal Proceedings; Asylum Procedures

62 Fed. Reg. 10,312 (Mar. 6, 1997).........................................................22, 24

Procedures for Credible Fear Screening and Consideration of Asylum, 

Withholding of Removal, and CAT Protection Claims by Asylum Officers

86 Fed. Reg. 46,906 (Aug. 20, 2020) .............................................................14

Procedures for Credible Fear Screening and Consideration of Asylum, 

Withholding of Removal, and CAT Protection Claims by Asylum Officers

87 Fed. Reg. 18,078 (Mar. 29, 2022). .................................................... passim

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Regulations

42 C.F.R. § 440.255............................................................................................18

8 C.F.R. § 1003.0................................................................................................12

8 C.F.R. § 1003.10..............................................................................................12

8 C.F.R. § 1208.2....................................................................................10, 11, 22

8 C.F.R. § 208.1..................................................................................................27

8 C.F.R. § 208.14................................................................................................27

8 C.F.R. § 208.3............................................................................................10, 17

8 C.F.R. § 208.9..................................................................................................27

8 C.F.R. § 212.5..................................................................................................30

8 C.F.R. § 235.....................................................................................................30

8 C.F.R. § 235.6..................................................................................................10

8. C.F.R. § 208.2.....................................................................................10, 11, 22

Constitutional Provisions

U.S. Const. art. II, § 1, cl. 1 ...............................................................................13

U.S. Const. art. II, § 2, cl. 2 .........................................................................12, 13

U.S. Const. art. II, § 3 .......................................................................................13

Federal Register entries

62 Fed. Reg. 444 (Jan. 3, 1997).........................................................................24

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I. Introduction

The Defendants promulgated a rule beset by fatal flaws: It contradicts 

Congress’s commands, and it invests power in individuals who aren’t 

authorized to wield it. They did so despite having those flaws pointed out—and 

despite having Texas and other States specifically identify the millions upon 

millions of dollars of costs that the rule would impose on them. And even that 

was not enough: Despite this Court having ruled otherwise not even a year ago, 

they proclaim that the perverse incentives they are creating can’t exist; that if 

they can exist, they won’t; and that even if they do, their new Rube Goldberg 

is at least no worse than what it’s replacing.

This is how the Defendants’ mutation of the asylum-application system 

comes before the Court: As if on a dare to contradict the Court’s earlier rulings 

as thoroughly as possible. The immigration laws do not give the Defendants 

permission to give themselves permission to change the immigration laws to 

their liking—Congress has put laws into place that the Defendants must 

follow, and those laws do not permit wholesale usurpation of powers that must 

be exercised by constitutionally appointed officers. The Defendants’ Interim 

Final Rule permitting them to grant asylum at their leisure is illegal, and the 

Court should enjoin them from implementing it.

II. Facts

A. Expedited removal and credible fear screenings. 

The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, and 

the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., charge the 

Department of Homeland Security (“DHS”) with enforcing the United States’ 

immigration laws. Under those laws, “several classes of aliens are 

‘inadmissible’ and therefore ‘removable.’” Dept. of Homeland Sec. v.

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Thuraissigiam, 140 S. Ct. 1959, 1964 (2020) (citing 8 U.S.C. §§ 1182, 

1229a(e)(2)(A)). Among these are aliens who lack a valid entry document when 

they apply for admission. 8 U.S.C. § 1182(a)(7)(A)(i)(l). Applicants for 

admission include both aliens who arrive in the United States and aliens who 

are present in the United States without having been lawfully admitted, who 

are deemed to have applied for admission. 8 U.S.C. § 1225(a)(1). 

Congress created expedited procedures for removing aliens who are 

“present in the United States who [have] not been admitted” and to aliens “who 

arrive[] in the United States (whether or not at a designated port of arrival[.]” 

8 U.S.C. § 1225(a)(1). These aliens are subject to expedited removal if they 

(1) are inadmissible because they lack a valid entry document; (2) have not 

been continuously physically present in the United States for the two years 

preceding their inadmissibility determination; and (3) are among those whom 

the Secretary of Homeland Security has designated for expedited removal. Id. 

§ 1225(b)(1)(A). Once an immigration officer, such as a Border Patrol Agent, 

determines that such an alien is inadmissible, the alien must be ordered 

“removed from the United States without further hearing or review.” Id.

§ 1225(b)(1)(A)(i). 

If the alien “indicates either an intention to apply for asylum . . . or a fear 

of persecution,” the officer shall refer the alien for an interview by an asylum 

officer[.]” Id. § 1225(b)(1)(A)(i). This interview, called a credible-fear interview, 

is the first step in the process by which the “Secretary of Homeland Security 

or the Attorney General may grant asylum to an alien who has applied for 

asylum” who otherwise would be removed from the country. Id. § 1158(b)(1)(A). 

Asylum officers, employed by U.S. Citizenship and Immigration Services 

(“USCIS”), conduct these interviews. Id. § 1225(b)(1)(B). If the asylum officer 

determines after the interview that the alien has a credible fear of 

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persecution—that is, that “there is a significant possibility . . . that the alien 

could establish eligibility for asylum,” id. § 1225(b)(1)(B)(v)—“the alien shall 

be detained for further consideration of the application for asylum.” Id.

§ 1225(b)(1)(B)(ii). If the asylum officer “determines that an alien does not have 

a credible fear of persecution, the officer shall order the alien removed from the 

United States without further hearing or review.” Id. § 1225(b)(1)(B)(iii)(I). 

If the asylum officer has made a credible-fear finding for the alien, the

further consideration of the asylum application occurs in a removal proceeding

before an immigration judge. Id. § 1229a(a)(1). These proceedings are “the sole 

and exclusive procedure for determining whether an alien may be admitted to 

the United States[.]” Id. § 1229a(a)(3). The alien prompts this further review 

by filing an application for asylum, 8 C.F.R. § 208.3(a), over which the 

immigration judge has exclusive jurisdiction, id. § 208.2(c)(1), 1208.2(c)(1)(ix). 

Otherwise, the alien’s case proceeds based on the immigration officer’s 

mandatory referral to an immigration judge. Id. § 235.6(a)(2)(iii)

If the asylum officer makes a negative credible-fear finding, the alien can 

request review by an immigration judge, which “shall be concluded as 

expeditiously as possible, to the maximum extent practicable within 24 hours, 

but in no case later than 7 days after the date of the determination[.]” 8 U.S.C. 

§ 1225(b)(1)(B)(iii)(III). Those aliens “shall be detained pending a final 

determination of credible fear of persecution and, if found not to have such a 

fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV). 

This “system for processing protection claims made by individuals 

encountered at or near the border and who establish credible fear was 

originally adopted in 1997” following enactment of the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996. Appx. 14; see Pub. L. 104-

208, 110 Stat. 3009, div. C (Sep. 30, 1996). That has remained true even 

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following the Homeland Security Act, which created DHS and charged it “with 

the administration and enforcement of [the asylum-application process] and 

all other laws relating to the immigration and naturalization of aliens.” 8 

U.S.C. § 1103(a)(1). 

The Homeland Security Act did not transfer all immigration authority and 

functions to DHS. Rather, the Attorney General retained: 

such authorities and functions under this chapter and all other 

laws relating to the immigration and naturalization of aliens 

as were exercised by the Executive Office for Immigration 

Review, or by the Attorney General with respect to the 

Executive Office for Immigration Review, on the day before the 

effective date of the Immigration Reform, Accountability and 

Security Enhancement Act of 2002.

8 U.S.C. § 1103(g)(1). Authorities and functions exercised by EOIR before the 

act, that is, remained with EOIR—including the adjudication of asylum claims 

following a credible fear finding, as noted in the Defendants’ own regulations. 

See 8 C.F.R. § 1208.2(c)(1)(ix); 8 C.F.R. § 208.2(c)(1)(ix).1 

B. Immigration judges and asylum officers. 

Each immigration judge is “an attorney whom the Attorney General 

appoints as an administrative judge within the Executive Office for 

Immigration Review, qualified to conduct specified classes of proceedings, 

including [hearings] under section [240 of the INA].” 8 U.S.C. § 1101(b)(4). 

“Immigration judges . . . act as the Attorney General’s delegates in the cases 

that come before them” and “exercise the powers and duties delegated to them 

by the Act and by the Attorney General through regulation.” 8 C.F.R. 

1 Asylum claims filed by unaccompanied alien children are an exception. Under the 

Trafficking Victims Protection Reauthorization Act of 2008, USCIS has initial 

jurisdiction to adjudicate those claims. See 8 U.S.C. § 1158(b)(3)(C).

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§ 1003.10(a), (b). They operate as part of EOIR, the Director of which oversees 

the delegates who exercise the Attorney General’s authority to determine 

whether aliens are removable from the United States. See id. § 1003.0 et seq.

In removal hearings, immigration judges “decid[e] the inadmissibility or 

deportability of [the] alien.” 8 U.S.C. § 1229a(a)(1). As discussed, these 

hearings are the “sole and exclusive procedure for determining whether an 

alien may be admitted to the United States or, if the alien has been so 

admitted, removed from the United States.” Id. § 1229a(a)(3). Beyond the 

power to conduct these hearings, immigration judges are empowered by 

Congress to “administer oaths, receive evidence, and interrogate, examine and 

cross-examine . . . any witnesses.” Immigration judges may also issue 

subpoenas and impose monetary sanctions. Id. § 1229a(b)(1). 

In contrast, asylum officers are members of the civil service who have 

received specialized training and possesses experience in adjudicating asylum 

applications. See id. § 1225(b)(1)(E)(i). They adjudicate asylum applications 

filed by aliens not in removal proceedings. See id. § 1158. Their decisions are 

not subject to review by, and they are not appointed by, the Director of USCIS 

or the Secretary of Homeland Security, and they are not appointed by the 

Director of USCIS or the Secretary of Homeland Security. Rather, they are 

supervised by officers who have “had substantial experience adjudicating 

asylum claims.” Id. § 1225(b)(1)(E)(ii).

C. The Appointments Clause.

The Appointments Clause establishes the “exclusive means of appointing 

‘Officers.’ Only the President, a court of law, or a head of department can do 

so.” Lucia v. S.E.C., 138 S. Ct. 2044, 2051 (2018) (citing U.S. Const. art. II, § 2, 

cl. 2). As the Supreme Court has explained: 

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Under the Constitution, ‘[t]he executive Power’ is vested in the 

President, who has the responsibility to ‘take Care that the 

Laws be faithfully executed.’ Art. II, § 1, cl. 1; § 3. The 

Appointments Clause provides that he may be assisted in 

carrying out that responsibility by officers nominated by him 

and confirmed by the Senate, as well as by other officers not 

appointed in that manner but whose work, we have held, must 

be directed and supervised by an officer who has been. § 2, cl. 2. 

United States v. Arthrex, Inc., 141 S. Ct. 1970, 1976 (2021). 

Officers of the United States are officers with “significant authority” that 

they exercise “pursuant to the laws of the United States.” Buckley v. Valeo, 424 

U.S. 1, 125–26 & n.162 (1976). Whether principal or inferior, unless properly 

appointed, an individual whose duties render them as an “officer of the United 

States” has no authority to act, and their actions have no legal effect. See 

Buckley, 424 U.S. at 142 (“Such functions may be discharged only by persons 

who are “Officers of the United States”); Ryder v. United States, 515 U.S. 177, 

185 (1995) (“Appointments Clause challenge[s] . . . invalidate[] actions taken 

pursuant to defective title”); see generally Lucia, 138 S. Ct. 2044 (actions of an 

improperly appointed administrative law judge are void). 

D. Parole. 

The Secretary of Homeland Security may parole into the United States an 

otherwise inadmissible alien. See 8 U.S.C. § 1182(d)(5). But he may do so only 

on a case-by-case basis for “urgent humanitarian reasons” or “significant public 

benefit.” Id. § 1182(d)(5)(A). Congress added those restrictions—the case-bycase basis for urgent humanitarian reasons or significant public benefit—to 

the parole power in 1996, because:

The text of section 212(d)(5) is clear that the parole authority 

was intended to be used on a case-by-case basis to meet specific 

needs, and not as a supplement to Congressionally-established 

immigration policy. In recent years, however, parole has been 

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used increasingly to admit entire categories of aliens who do 

not qualify for admission under any other category in 

immigration law, with the intent that they will remain 

permanently in the United States. This contravenes the intent 

of section 212(d)(5), but also illustrates why further, specific 

limitations on the Attorney General’s discretion are necessary.

H.R. Rep. No. 104-469, at 140 (1996) (emphasis added).

The Fifth Circuit has made it clear that this authority is reserved, as 

Congress said, for case-by-case considerations and is not intended to be used 

for classes, or masses, of people. Texas v. Biden (“Texas MPP”), 20 F.4th 928, 

947 (5th Cir. 2021). This Court noted as much in the decision the Fifth Circuit 

upheld. Texas v. Biden (“Texas MPP dist. ct.”), 554 F. Supp. 3d 818, 852 n.11 

(N.D. Tex. 2021). 

E. The Notice of Proposed Rulemaking and the Interim Final Rule. 

1. The NPRM and the States’ comment.

In August 2021, the Defendants issued a Notice of Proposed Rulemaking 

Procedures for Credible Fear Screening and Consideration of Asylum, 

Withholding of Removal, and CAT Protection Claims by Asylum Officers, 86 

Fed. Reg. 46,906 (Aug. 20, 2020). The proposed rule would make several 

changes in the procedures the Defendants use to receive, evaluate, and grant 

asylum applications. In addition, it would change the standards that the 

Defendants use for determining whether to grant parole to an alien who 

applies for asylum. 

A coalition of State attorneys general, including Texas’s, commented on the 

proposed rule. See Appx. 150–168, DHS Rulemaking Docket USCIS-2021-

0012, cmt. no. 4980 (Oct. 21, 2021), available at regulations.gov/comment/

USCIS-2021-0012-4980. The comment raised several concerns about the 

proposed rule, including that the proposed rule would: 

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• “[E]ncourage more non-citizens to seek asylum” by increasing the odds 

of receiving a positive credible-fear finding, thereby making “the Border 

crisis worse by encouraging non-citizens living abroad to make their way 

to the United States” and “increas[ing] the statistical likelihood of nonmeritorious asylum claims and illegal entry overall.” Appx. 152–53. One 

specific such inducement would be “treat[ing] a positive credible-fear 

finding . . . as a properly filed asylum application that starts the clock 

for eligibility to file for work authorization,” thereby “speeding up the 

process by which a non-citizen can gain work authorization[.]” Appx.

156. 

• “[R]evise [the] mandatory statutory language [regarding parole] by 

permitting DHS to consider whether parole is required ‘because 

detention is unavailable or impracticable.’” Appx. 158. 

• Impose serious social and economic costs upon the States, including the 

cost of “certain public benefits, such as Social Security Income, 

Medicaid, welfare and food stamps, employment authorization, a 

driver’s license, and more,” which “the Supreme Court and the Fifth 

Circuit have recognized [as] injuries to a local or state government’s 

financial interest based on the actions of the federal government, 

specifically in the context of immigration.” Appx. 160–61. Among these 

costs are “free public education to the children of unlawfully present 

non-citizens” and “services such as emergency medical care[.]” Appx. 

162. 

2. The Interim Final Rule.

The Defendants promulgated the Interim Final Rule on March 29, 2022, 

with an effective date of May 31, 2022. Appx. 001–149, Procedures for Credible 

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Fear Screening and Consideration of Asylum, Withholding of Removal, and 

CAT Protection Claims by Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022). 

As they proposed in their NPRM, they transferred authority for final 

adjudication of asylum claims from immigration judges to asylum officers and

aggravated their already improperly expansive interpretation of their parole 

power. In addition, they entirely ignored the comments from Texas and its 

sister States.

Most prominently, the Interim Rule “establishes a new process” for 

granting asylum. Appx. 8. The rule arrogates to USCIS the power to cut 

immigration judges out of the asylum process, instead permitting USCIS to 

refer asylum claims to itself for what it calls so “an Asylum Merits interview,” 

after which asylum officers themselves may grant asylum to aliens. Id. Despite 

a removal proceeding’s being the “sole and exclusive procedure for determining 

whether an alien may be admitted to the United States,” and despite that 

requirement that those proceedings be presided over by an immigration judge 

appointed by the Attorney General, 8 U.S.C. § 1229a(a)(1), (3), the asylum 

officer’s grant is not reviewed by an immigration judge. Indeed, it is not 

reviewed by anyone who would qualify as an Officer of the United States unless 

the Director of USCIS especially orders such a review. Appx. 35–36. 

Further, the new rule eliminates the current requirement that an alien file 

an application for asylum. Instead, the “record of the credible fear 

determination” will be treated as “an asylum application[.]” 87 Fed. Reg. Appx. 

8. Among the effects of this change is an acceleration of an alien’s ability to 

receive permission to work in the United States; by treating the record of the 

credible-fear interview as an asylum application, the Defendants allow aliens 

an automatic, early start on “the waiting period for eligibility to file for 

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employment authorization based upon a pending asylum application.” Appx. 

18 (citing 8 C.F.R. § 208.3(c)(3)). 

In addition, the new rule makes dispositive (absent new evidence) an 

asylum officer’s determination that an alien who does not qualify for asylum 

nevertheless qualifies for withholding of removal under the Convention 

Against Torture. See Appx. 28–29. This adopts an even more aggressive 

posture than did the NPRM, which would have allowed an immigration judge 

to reconsider such a determination. See Appx. 29. 

F. Costs that illegal immigration imposes upon Texas.

Illegal immigration imposes millions upon millions of dollars of costs upon 

Texas. 

1. Driver’s licenses.

Texas furnishes driver’s licenses to aliens so long as their presence in the 

United States is authorized by the federal government. Appx. 169–70. Each 

additional customer seeking a Texas driver’s license imposes a cost on Texas. 

See Appx. 170–71. Many illegal aliens released or paroled into Texas will 

obtain Texas driver’s licenses. Appx. 170. Because “driving is a practical 

necessity in most of” Texas, “there is little doubt that many” aliens present in 

Texas because they are paroled into the United States or are granted asylee 

status will obtain, at a cost to Texas, a Texas driver’s license. Texas v. United 

States (“Texas DAPA”), 809 F.3d 134, 156 (5th Cir. 2015). 

2. Education. 

Texas estimates that the average per-student, per-year funding 

entitlement for the 2021–22 school year is $9,211. Appx. 174. For students 

qualifying for bilingual education services, that cost is $11,500. Id. While Texas 

does not have direct information on the number of illegal-immigrant children 

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or children of illegal immigrants attend public school in the State, it does have 

information from the U.S. Department of Health and Human Service’s Office 

of Refugee Resettlement on the number of unaccompanied minor aliens 

released to sponsors in Texas. Appx. 174–75. If each of those children are of 

school age, the cost to Texas of providing public education to them runs into 

the hundreds of millions of dollars—$176.42 million for Fiscal Year 2022 alone. 

Appx. 175. This amount increases as the number of illegal aliens in the State 

increases. Id.

3. Healthcare. 

Texas funds three healthcare programs that require significant 

expenditures to cover illegal aliens: the Emergency Medicaid Program, the 

Family Violence Program, and the Texas Children's Health Insurance 

Program. Appx. 182. Though these numbers are all estimates, it is a certainty 

that illegal aliens’ use of each of these programs imposes some cost upon the 

State. Appx. 184.

Texas is required by federal law to include illegal aliens in its Emergency 

Medicaid Program. 42 C.F.R. § 440.255(c). Because claims data do not 

conclusively track the legal residency of patients, Texas’s Health and Human 

Services Commission estimates, as it is required to do by State law, the portion 

of emergency Medicaid spending attributable to illegal aliens. Appx. 182–83. 

For Fiscal Year 2019, the most recent year for which data is available, that 

amount was $80 million. Id. 

The Family Violence Program contracts with non-profit agencies across the 

State to furnish essential services to victims of family violence, including 

illegal aliens. Appx. 183. The Program does not ask individuals about their 

residency status, so, as with the Emergency Medicaid Program, HHSC 

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estimates the amount of spending attributable to illegal aliens. Id. In Fiscal 

Year 2019, that amount was $1 million. Id.

Finally, CHIP furnishes pre-natal care to certain low-income women who 

do not qualify for Medicaid. Appx. 183. CHIP, like the other two programs, does 

not require legal residency information, so HHSC estimates the amount of 

spending attributable to illegal aliens. Id. For Fiscal Year 2019, that amount 

was $6 million—the first time since the estimates began in Fiscal Year 2009 

that the amount has been less than $30 million. Appx. 183–84.

Texas also incurs costs for uncompensated care provided by state public 

hospital districts to illegal aliens. The last time that HHSC estimated this 

amounts was Fiscal Year 2008, when it calculated them at almost $720 million. 

Appx. 184. 

4. Law enforcement and correctional costs

The Texas Department of Criminal Justice administers the State Criminal 

Alien Assistance Program in conjunction with ICE and DHS. Appx. 192–93. 

That program pays states and localities some of the costs of incarcerating 

certain criminal illegal aliens. Id. The program does not begin paying 

reimbursements until the agency has incarcerated the alien for at least four 

consecutive days. Appx. 193. For the most recent application period, 2019–20, 

TDCJ reported a systemwide cost of incarcerating illegal aliens of more than 

$156 million. Id. For the 2018–19 period, TDCJ reported a systemwide cost of 

more than $165 million. Appx. 193–94. For Fiscal Year 2020, TDCJ estimates 

that it will cost roughly $11 million to furnish parole and mandatory 

supervision services to illegal aliens. Appx. 194.

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III. Standard

For a preliminary injunction, Texas must show “(1) a substantial likelihood 

of success on the merits, (2) a substantial threat of irreparable injury if the 

injunction is not issued, (3) that the threatened injury if the injunction is 

denied outweighs any harm that will result if the injunction is granted, and 

(4) that the grant of an injunction will not disserve the public interest.” Janvey 

v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). None of the four prerequisites has 

a fixed quantitative value. Rather, the intensity of each in a given calculus is 

evaluated on a sliding scale. Texas v. United States, 524 F. Supp. 3d 598, 651 

(S.D. Tex. 2021) (citations omitted).

This is an Administrative Procedure Act case. The APA is the mechanism 

for holding federal agencies accountable for violating the law. Dept. of 

Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020). 

Therefore, there is a strong presumption in favor of judicial review. See Abbott 

Labs. v. Gardner, 387 U.S. 136, 140 (1967); Texas v. Biden (“Texas Title 42”), 

No. 4:21-cv-0579, 2022 WL 658579, at *11 (N.D. Tex. Mar. 4, 2022). Under the 

APA, a reviewing court decides all relevant questions of law, interprets 

constitutional and statutory provisions, determine the meaning or 

applicability of the terms of an agency action, and then holds unlawful and sets 

aside agency action, findings, and conclusions found to be arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with law; contrary to 

constitutional right, power, privilege, or immunity; in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory right; or without 

observance of procedure required by law. 5 U.S.C. § 706(2). It is a core principle 

that an agency may not rewrite clear statutory terms to suit its own sense of 

how statutes should operate. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 328 

(2014). 

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The APA requires agencies to engage in reasoned decision making.

Michigan v. EPA, 576 U.S. 743, 750 (2015). This necessarily means that an 

agency’s decreed result must be within the scope of its lawful authority, and

the process by which it reaches that result must be logical and rational. The

agency must examine the relevant data and articulate a satisfactory 

explanation for its action including a rational connection between the facts 

found and the regulatory choice made. Motor Vehicle Mfrs. Assn. of U.S. Inc. v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Texas v. United States, 

524 F. Supp. 3d at 652 (citations omitted). Among other things, reasoned 

decision making includes consideration of whether there was legitimate 

reliance on the status quo prior to an agency’s change in course, for “[i]t would 

be arbitrary and capricious to ignore such matters.” Texas Title 42, 2022 WL 

658579, at *17 (quoting Regents, 140 S. Ct. at 1913 (quoting another source)).

IV. Argument

A. Texas is Likely to Succeed on the Merits. 

The Defendants’ power to act, and how they may act, are authoritatively 

prescribed by the Constitution and by Congress, so that when they act 

improperly, no less than when they act beyond their jurisdiction, what they do 

is ultra vires. See City of Arlington, Tex. v. FCC, 569 U.S. 290, 297 (2013). 

Because administrative agencies are creatures of statute, they possess only the 

authority that Congress has provided. Natl. Fedn. of Indep. Bus. v. Dept. of 

Labor, 142 S. Ct. 661, 665 (2022). The question in every case is, simply, 

whether the statutory text authorizes the agency’s action, or not. City of 

Arlington, 569 U.S. at 301. 

As explained below, the Interim Final Rule exceeds the Defendants’ 

authority, violates controlling statutes, violates the Appointments Clause, and 

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is arbitrary and capricious. Consequently, Texas is likely to succeed on the 

merits. 

1. The Interim Final Rule violates the Homeland Security Act.

The Defendants’ proposed transfer of authority to asylum officers to 

adjudicate asylum claims originating from the expedited removal process 

violates the Homeland Security Act. 

a. The power the Interim Rule purports to grant to asylum 

officers is vested in immigration judges.

As described above, the Homeland Security Act mandated:

The Attorney General shall 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 Executive Office for Immigration Review, or by the 

Attorney General with respect to the Executive Office for 

Immigration Review, on the day before the effective date of the 

Immigration Reform, Accountability and Security 

Enhancement Act of 2002. 

8 U.S.C. § 1103(g)(1) (emphasis added).

This language—that the Attorney General “shall have such authorities 

and functions”—is as unambiguous now as it was in 2002. See Bostock v. 

Clayton Cnty., 140 S. Ct. 1731, 1738 (2020) (a court “normally interprets a 

statute in accord with the ordinary public meaning of its terms at the time of 

its enactment.”). In 2002, immigration judges within EOIR had the authority 

to, and indeed did, adjudicate claims for asylum that originated from the 

credible-fear process; asylum officers did not. See Inspection and Expedited 

Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal 

Proceedings; Asylum Procedures, 62 Fed. Reg. 10,312 (Mar. 6, 1997); 8 C.F.R. 

§ 1208.2(c)(1)(ix); 8 C.F.R. § 208.2(c)(g1)(ix). See also David A. Martin, 

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Immigration Policy and the Homeland Security Act Reorganization: An Early 

Agenda for Practical Improvements, 80 Interpreter Releases 601, 604 (Apr. 28, 

2003) (pre-Homeland Security Act, EOIR had always been a creature of DOJ 

regulations). The Interim Final Rule, however, violates the Homeland Security 

Act by stripping authority from immigration judges (operating under the 

authority of the Attorney General) and instead investing it in asylum officers 

(operating under the authority of DHS).

Congress granted EOIR the “sole and exclusive” authority to make final 

determinations over asylum claims originating from expedited removals. 8 

U.S.C. § 1229a(a)(3). Only an immigration judge may conduct such a 

proceeding. See 8 U.S.C. § 1229a(a)(1). Congress spoke clearly when it used the 

phrase “sole and exclusive authority,” and the Interim Final Rule cannot 

transfer that authority to an asylum officer in DHS without further 

Congressional action. See Make the Rd. New York v. Wolf, 962 F.3d 612, 632 

(D.C. Cir. 2020) (“Congress’s addition of the phrase . . . ‘sole’ doubles down on 

the confinement of the judgment to one decisionmaker, and one decisionmaker 

alone.”). 

b. The purported ambiguities do not justify the Defendants’ 

interpretation. 

Nor can the Defendants retreat to purported ambiguities in the statute’s 

language. The law commits the initial screening of affirmative asylum 

applications to asylum officers, after which an applicant found to have a 

“credible fear of persecution” is referred for “further consideration of the 

application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). The Defendants claim that 

the ambiguity of this phrase—which does not define who conducts that “further 

consideration” or how it is conducted—permits them to invest the power to 

grant asylum in frontline employees. Appx. 40–41. But this is doubly flawed. 

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First, the phrase is not ambiguous. 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 States[.]” 8 U.S.C. 

§ 1229a(a)(3). 

Nothing in that chapter of Title 8—nothing, that is, in the Immigration 

and Nationality Act, as amended—specifies any other procedure—that is, 

specifies otherwise. Certainly the Defendants point to nothing that does so. 

The only authority they cite to support their theory that they have the 

authority to jettison twenty-five years of understanding of immigration law is 

an out-of-context aside from the rulemaking in which DOJ first proposed the 

current asylum-review regulations—the rulemaking in which DOJ determined 

that the consideration would be by “an immigration judge in removal 

proceedings[.]” See Appx. 40, citing 62 Fed. Reg. 444, 447 (Jan. 3, 1997). See 

also 62 Fed. Reg. 10,312, 10,320 (Mar. 6, 1997) (“the further consideration of 

the application for asylum by an alien who has established a credible fear of 

persecution will be provided for in the context of removal proceedings. . . .”).

Further, the Defendants’ reading would render much of the language 

regarding 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) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). The Defendants’ 

proposal erases from the law language indicating a judicial or quasi-judicial 

proceeding: 

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• “The burden of proof is on the applicant to establish” entitlement to 

asylum. 8 U.S.C. § 1158(b)(1)(B)(i).

• To qualify for asylum, an applicant’s “testimony” must satisfy “the trier 

of fact” that it is credible, persuasive, and specific. Id. § 1158(b)(1)(B)(ii).

• In making that determination, “the trier of fact” may weigh “the credible 

testimony along with other evidence of record.” Id. 

• If “the trier of fact” determines that corroborating “evidence” is 

necessary, “such evidence must be provided” unless the applicant “does 

not have” and “cannot reasonably obtain the evidence.” Id.

• The “trier of fact may base a credibility determination” on a number of 

facts gleaned from a “witness:” demeanor, candor, responsiveness, 

plausibility, internal and external consistency, and accuracy. Id.

§ 1158(b)(1)(B)(iii).

Non-adversarial interviews do not have “triers of fact,” “testimony,” or 

“evidence of record.” And while an interviewer may talk with a witness and 

gather evidence, “most people” reading those terms “would have understood” 

them indicate a formal proceeding at least resembling a trial. See New Prime, 

Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019). 

What to make, then, of the investiture of the asylum power in the DHS 

Secretary? See 8 U.S.C. § 1158(b)(1)(A). The statute answers that question, too: 

The Secretary may rule on certain applications from an asylee’s spouse or 

children. A removal proceeding is the “sole and exclusive procedure for 

determining whether an alien may be admitted to the United States,” id.

§ 1229a(a)(3)—but an asylee’s spouse and children “may . . . be granted the 

same status as the alien if accompanying, or following to join, such alien.” Id.

§ 1158(b)(3)(A). A following spouse and children are not physically present in 

or arriving in the United States, id. § 1158(a)(1). Instead, they are seeking, 

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from elsewhere, to share in the status that has already been granted by an 

immigration judge in a proceeding that was required to be heard by that 

immigration judge. By deciding the applicant’s asylum claim, the immigration 

judge has already decided that the family members may be admitted; the 

Secretary may then verify the family members’ identities and grant them 

asylee status.

⁂

The Interim Final Rule purports to strip authority from the officers in 

whom it is vested by statute because the Defendants believe that they have hit 

upon a better solution. The Defendants’ opinion of their regulation does not 

override Congress’s command. The Interim Final Rule should be set aside.

2. The Interim Final Rule violates the Appointments Clause.

The Interim Final Rule should be held unlawful and set aside because it 

violates the Appointments Clause.

a. To exercise the authority granted by the Interim Rule, 

asylum officers would have to qualify as Officers of the 

United States—which they are not.

Officers have duties that are “continuing and permanent,” have positions 

that are “continuing,” and exercise “significant authority pursuant to the laws 

of the United States.” Lucia, 138 S. Ct. at 2051; see Edmond v. United States, 

520 U.S. 651, 662–63 (1997). Conversely, employees are lesser functionaries 

subordinate to officers of the United States that have duties that are only 

“occasional or temporary.” Buckley 424 U.S. at 125–26 & n.162.

Under the Interim Rule, asylum officers would be—as their name 

indicates—officers, not employees. Under existing statutes and regulations—

outside of the credible-fear and expedited-removal context—they have the 

authority to grant asylum, which provides a pathway to obtaining lawful 

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permanent resident status, and eventually, citizenship. See e.g., 8 C.F.R. 

§ 208.14(b) (“an asylum officer may grant, in the exercise of his or her 

discretion, asylum to an applicant who qualifies as a refugee. . . .”). The Interim 

Final Rule purports to delegate even more authority to asylum officers. Appx. 

9. When deciding whether to grant asylum, asylum officers, inter alia, 

administer oaths, verify the identity of asylum applicants, present and receive 

evidence, question applicants and any witnesses, make credibility 

determinations, issue written decisions, and determine whether an applicant 

has met their burden of proof. See, e.g., 8 C.F.R. § 208.9(b)–(c). These are the 

same type of quasi-judicial functions that the Supreme Court has found 

requires appointment as an officer. See Lucia, 138 S. Ct. at 2053-54; Freytag 

v. Commr., 501 U.S. 868, 881 (1991). 

Moreover, asylum officers “hold a continuing office established by law.” 

Lucia, 138 S. Ct. at 2053. They do not have “episodic” or temporary 

appointments. Their positions are career positions created and defined by

statute. 8 U.S.C. § 1225(b)(1)(E); see also 8 C.F.R. § 208.1(b). Additionally, 

their actions are not subject to oversight by a properly appointed officer; rather, 

they are supervised by other asylum officers with “substantial experience 

adjudicating asylum applications. 8 U.S.C. § 1225(b)(1)(E). Cf. Arthrex, 141 

S. Ct. at 1976.

But officers they are not. They are not principal officers, that is, persons 

appointed by the President following the Senate’s advice and consent. Nor are 

they inferior officers, that is, officers appointed by principal officers whose 

work is directed and supervised by a principal officer. See Lucia, 138 S. Ct. at 

2051; Edmond, 520 U.S. at 663. As the Interim Rule concedes, they are not—

they are “career Government employees,” Appx. 33, who are “only empowered 

to grant asylum[] as an exercise of the Secretary’s authority,’ Appx. 36, whose 

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decisions are “subject to supervisory review,” Appx. 35, by other employees, 

reviewed by an actual officer of the United States only upon certification by 

the USCIS Director herself, Appx. 35. And because they are not properly 

appointed, they have no power to exercise the federal government’s sovereign 

authority—whether for affirmative filings or, as proposed in the Interim Final 

Rule, to adjudicate claims after a positive credible fear finding. 

The Interim Final Rule, however, delegates significant duties and 

discretion to these employees, expanding their authority and granting them 

substantial discretion to actually grant aliens asylum after receiving a positive 

credible fear finding. Appx. 9. Because asylum officers are not properly 

appointed under the Appointments Clause, and yet the Interim Final Rule 

purports to vest them with “significant authority pursuant to the laws of the 

United States,” it follows that the Interim Final Rule is unlawful. Lucia, 138 

S. Ct. at 2055; Buckley, 424 U.S. at 126. 

Second, even assuming that the phrase is ambiguous, the constitutionalavoidance doctrine would forbid the Defendants’ interpretation. By permitting 

the Defendants to vest significant sovereign power in non-officers, the 

Defendants’ interpretation would create the significant possibility of a conflict 

with the Appointments Clause. Yet when presented with a choice between 

“competing plausible interpretations of a statutory text,” courts make “the 

reasonable presumption that Congress did not intend the alternative which 

raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 

(2005). 

3. The Interim Final Rule violates the parole authority.

The default outcome for illegal aliens in the United States is expedited 

removal from the country. See 8 U.S.C. §§ 1182(a)(6), 1225 (b)(1)(A)(i). 

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However, in certain circumstances, aliens may delay removal and obtain 

further review of their application for admittance. For instance, as outlined 

above, aliens who claim asylum are entitled to a review of such claims. Id. at 

§ 1225(b)(1)(A). Likewise, aliens who can prove two years of uninterrupted and 

ongoing physical presence in the United States may also avoid expedited 

removal. Id. at § 1225(b)(1)(A)(iii)(II). 

For aliens who avoid expedited removal and remain in the United States 

pending further proceedings, the default outcome is detention. Id. at § 1225(b). 

For instance, an alien seeking asylum who makes an initial showing of a 

credible fear of persecution “shall be detained for further consideration.” Id. at 

§ 1225(b)(1)(B)(ii). Likewise, an alien who fails to make such a showing must 

also be detained pending secondary review or removal. Id. at 

§ 1225(b)(2)(B)(iii). More generally, if “an alien seeking admission is not clearly 

and beyond a doubt entitled to be admitted, the alien shall be detained. . . .” 

Id. at § 1225(b)(2)(A). “Read most naturally, §§ 1225(b)(1) and (b)(2) mandate 

the detention of applicants for admission until certain proceedings have 

concluded.” Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018). 

Within this framework, Congress has provided a narrow path to parole for 

those aliens who avoid expedited removal and are, therefore, subject to 

extended detention within the United States. Specifically, § 1182(d)(5)(A) 

allows parole of aliens “only on a case-by-case basis for urgent humanitarian 

reasons or significant public health benefit.” Congress limited parole to these 

circumstances as a direct response to regulatory overreach in the form of 

unfettered parole: 

The text of section 212(d)(5) is clear that the parole authority 

was intended to be used on a case-by-case basis to meet specific 

needs, and not as a supplement to Congressionally-established 

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immigration policy. In recent years, however, parole has been 

used increasingly to admit entire categories of aliens who do 

not qualify for admission under any other category in 

immigration law, with the intent that they will remain 

permanently in the United States. This contravenes the intent 

of section 212(d)(5), but also illustrates why further, specific 

limitations on the Attorney General’s discretion are necessary.

H.R. Rep. No. 104-469, at 140 (1996). 

Yet, using parole to “admit entire categories of aliens who do not qualify 

for admission . . . with the intent that they will remain permanently in the 

United States” is the precise purpose of the Interim Final Rule. In particular, 

the Interim Final Rule amends 8 C.F.R. § 212.5(b) to expand the categories of 

aliens who can meet its broad parole criteria. Appx. 143. Currently, § 212.5(b) 

applies only to those aliens in full and lengthy removal proceedings. Under the 

new regulatory scheme, § 212.5(b) will also apply to aliens subject to expedited 

removal, including those who have already received a removal order. Id.; 8 

C.F.R. § 235(b)(iii). 

In addition to expanding the number of aliens it can parole, DHS also seeks 

to obviate the “case-by-case” requirement of § 1182(d)(5)(A). DHS asserts that 

it may parole a detained alien “in the public interest where, in light of available 

detention resources, and considered on a case-by-case basis, detention of any 

particular [alien] would limit the agency’s ability to detain other [aliens] whose 

release may pose a greater risk of flight or danger to the community.” Appx.31. 

DHS’s suggestion that this determination could be made on a “case-by-case 

basis” is window dressing. Such a determination necessarily involves 

comparing multiple or hypothetical cases and evaluating factors that are 

neither related nor unique to the paroled alien. See id.

Additionally, the Fifth Circuit has already rejected DHS’s argument that 

it can abandon the “case-by-case” requirement in favor of a “limited resources” 

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argument. See Texas MPP, 20 F.4th at 997. “DHS cannot use [its] power to 

parole aliens en masse; that was the whole point of the ‘case-by-case’ 

requirement that Congress added. . . . So, the Government’s proposal to parole 

every alien it cannot detain is the opposite of the ‘case-by-case’ determinations 

required by law.” Id. (emphasis added). Apparently, DHS’s response to the 

Fifth Circuit’s admonition that it may not en masse parole every alien it cannot 

detain is to instead parole those same aliens for the same reason, but at a 

slightly different pace. 

Finally, if DHS is concerned about the availability of “detention resources,” 

it can—and must—look to Congress for its solution. Beyond the general rule of 

detention, and the limited exception of parole, Congress has provided a third 

option. An alien arriving on land from a country contiguous to the United 

States may be returned to that country pending resolution of their removal 

proceedings. 8 U.S.C. § 1225(b)(2)(C). Presumably, the Interim Final Rule

represents DHS’s efforts to ignore this option and, with it, its duty to 

implement duly-passed legislation. But, as the Fifth Circuit noted, “parole does 

not provide a way out” when DHS “can’t do one thing Congress commanded 

(detain under § 1225(b)(2)(A)), and [doesn’t] want to do one thing Congress 

allowed (return under § 1225(b)(2)(C).” Texas MPP, 20 F.4th at 996. 

4. The Interim Final Rule is arbitrary and capricious. 

The Interim Final Rule is arbitrary and capricious because the Defendants 

have relied on factors which Congress had not intended them to consider, 

entirely failed to consider an important aspect of the problem, offered 

explanations for its decision that run counter to the evidence, and are so 

implausible that it cannot be ascribed to a difference in view or the product of 

agency expertise. Motor Vehicle Mfrs., 463 U.S. at 43.

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First, the Defendants did not meaningfully consider and account for 

Texas’s reliance on their continued enforcement of federal immigration 

statutes. Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221–22 (2016) (“In 

explaining its changed position, an agency must also be cognizant that 

longstanding policies may have “‘engendered serious reliance interests that 

must be taken into account.’”). In short, the Defendants dismissed entirely the 

existence of any reliance interests whatsoever. According to the Defendants:

The governmental commenters do not appear to have identified 

any reliance interests. Although some commenters identified 

what they believed would be burdens on or injuries to State, 

county, and local governments as a result of the proposed 

rule—claims that are addressed in the Departments’ responses 

to comments—none clearly identified any significant reliance 

interests in the current state of affairs. 

Appx. 32. The Defendants went as far as to say that they “perceive[d] no 

serious reliance interests on the part of any State, county, or local 

governmental entity in the currently existing provisions the NPRM implicated 

or that are affected by this Interim Final Rule. Even if such reliance interests 

exist, the Departments would nevertheless promulgate this regulation for the 

reasons stated in this rule.” Id. 

But the Defendants are wrong. 

When it comes to the sincere consideration of reliance interests, “[i]t would 

be arbitrary and capricious to ignore such matters.” Regents, 140 S. Ct. at 1913; 

see also Wages & White Lion Invs., L.L.C. v. U.S. Food & Drug Admin., 16 

F.4th 1130, 1139 (5th Cir. 2021). It is not necessarily incumbent upon the 

States to necessarily raise such interests in a comment, and the Defendants 

act arbitrarily for not identifying the interests on their own under the 

standards articulated by Regents. But here, the States did raise such issues. 

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See Appx. 159–162. The Comment identified specific and concrete social and 

fiscal costs that States would incur due to the increased influx of illegal aliens 

into the United States because of the Defendants’ regulatory changes. Id. at 

159–64. 

Worse, the Defendants know about these costs and have been found 

capricious for ignoring them in the past. The Court itself has identified the 

costs that the Defendants’ truculence in enforcing the immigration laws has 

imposed on Texas and ruled that the Defendants acted arbitrarily and 

capriciously in ignoring those costs rather than taking them into consideration. 

See Texas MPP dist. ct., 554 F. Supp. 3d at 838–839, 848–851. And the 

Defendants have acknowledged these costs in other contexts, even while 

claiming that they should not have to take them into consideration. Appx. 208–

210. 

Further, the Defendants’ conclusion that their new rule would not 

incentivize an increase the number of illegal aliens who attempt to enter the 

United States is arbitrary and capricious. Their assertion that they “do not 

expect this rule to encourage or cause an increase in the number of individuals 

seeking asylum in the United States,” Appx. 37, is not merely unsupported: It 

directly contradicts DHS’s own conclusions in an analysis that is less than two 

years old—conclusions finding that the availability of parole into the United 

States for asylum claimants who merely passed a credible-fear screening 

created “perverse incentives” that encouraged greater illegal immigration. 

Texas MPP dist. ct., 554 F. Supp. 3d at 834. And, indeed, the Court held only 

last year DHS had arbitrarily disregarded these conclusions when it purported 

to find that the Migrant Protection Protocols program had not reduced the 

incentives for aliens to claim asylum to which they were not entitled. Id. at

837. 

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The Defendants, however, go even further here. They deny they are 

creating incentives: “The Departments disagree with the generalized belief 

that the availability of parole . . . acts as a pull factor,” Appx. 43—and this even 

as they acknowledge that they plan to continue to “take . . . detention capacity

into account when making parole determinations,” Appx. 47, and will no longer 

issue a Notice to Appear before an immigration judge as a matter of course to 

an alien who receives a positive credible-fear finding, instead leaving the alien 

at liberty for at least three weeks. Appx. 5.. They speculate without basis: “[B]y 

more expeditiously ordering removed those who are ineligible for protection, 

this rule may send a stronger deterrent signal relative to the status quo.” Appx. 

39. And they compare apples to oranges: Asylum officers may make crediblefear findings at roughly the same rate as immigration judges approve claims 

for asylum, see id. fn.57, but that does not take into account the number of 

aliens who receive credible fear findings and abscond or never apply for asylum

or the number of asylum officers’ false positives. And those numbers are 

material; one would expect the immigration judges’ grant rates to be 

significantly higher than those of the asylum officers if only the false positives 

were absconding—that is, if the numerator (those qualified for asylum) were 

remaining the same while the denominator (the total number of claimants) 

were shrinking.

As DHS itself found when it was not motivated to do otherwise, incentives 

matter. 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 MPP dist. ct., 554 F. Supp. 3d at 834, affd., Texas MPP, 20 

F.4th at 1002; Texas Title 42, 2022 WL 658579, at *18; Texas MPP dist. ct., 554 

F. Supp. 3d at 848–49. The Defendants’ failure to acknowledge this basic 

finding is arbitrary and capricious. Their excuse for doing so is that their new 

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rule “does not change the substantive standard for asylum eligibility.” Appx. 

37. But neither did MPP change the substantive standards for asylum claims—

and the Court already concluded there that Defendants may not use their 

tunnel vision on the substance of asylum law to willfully blind themselves to 

the incentives that their changes to the asylum process create. 

B. Without a preliminary injunction, Texas will suffer irreparable 

harm. 

Texas will suffer immediate and substantial irreparable injury that 

monetary damages could not fully repair unless the Interim Final Rule is 

enjoined. As described above, supra § II.F, it spends millions upon millions of 

dollars of money providing services to illegal aliens because of the United 

States government’s failure to enforce federal law. Should the Interim Final 

Rule go into effect, the number of illegal aliens in Texas, and thus Texas’s 

spending related to illegal aliens, will continue to climb.

Texas is also suffering injuries to the State’s interests as parens patriae, 

grounded in the harms that Texas’s local governments, each exercising Texas’s 

delegated police power to ensure the health and welfare of their citizens, must 

incur due to increased illegal immigration. The State spends tens of millions 

of dollars each year for increased law enforcement, and its citizens suffer 

increased crime, unemployment, environmental harm, and social disorder, due 

to illegal immigration. A rise in illegal immigration strains Texas’s resources 

and hampers its ability to provide essential services, such as emergency 

medical care, education, driver’s licenses, and other public safety services. The 

Supreme Court has ruled that increased crime causes an “ongoing and concrete 

harm” to the State’s law enforcement and public safety interests. Maryland v. 

King, 567 U.S. 1301, 1303 (2012). 

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If the Interim Final Rule takes effect, then the Defendants will be allowed 

to admit even greater numbers of illegal aliens into the United States in 

violation of federal law. As DHS and federal courts have found, incentives 

matter: 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 MPP, 20 F.4th at 1002; Texas Title 42, 2022 WL 658579, at *18; 

Texas MPP dist. ct., 554 F. Supp. 3d at 848–49. 

The injury that Texas faces cannot be remedied absent a preliminary 

injunction because the Defendants’ sovereign immunity prevents retrospective 

relief. Because there is no way to recover from the federal government for 

Texas’s costs, this injury is irreparable. See Texas v. United States, 524 

F. Supp. 3d at 663 (“[N]o Party has suggested that Texas could recover any of 

its likely financial injury here, and the Court cannot conceive of any path for 

Texas to pierce the federal government’s usual sovereign immunity or contrive 

a remedial cause of action sufficient to recover from its budgetary harm.”); 

Texas DAPA, 809 F.3d at 186 (“The district court found that retracting those 

benefits would be ‘substantially difficult—if not impossible,’ and the 

government has given us no reason to doubt that finding.”) (cleaned up); Texas 

v. United States, 86 F. Supp. 3d 591, 673 (S.D. Tex. 2015) (“The Court agrees 

that, without a preliminary injunction, any subsequent ruling that finds [a 

particular immigration policy] unlawful after it is implemented would result 

in the States facing the substantially difficult—if not impossible—task of 

retracting any benefits or licenses already provided to [immigrant] 

beneficiaries. This genie would be impossible to put back into the bottle.”). 

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C. The balance of the equities and public interest favor Texas. 

This Court should consider the balance-of-equities and public-interest 

elements together. See Nken v. Holder, 556 U.S. 418, 435 (2009) (merging these 

two elements when the Government is the nonmoving party); Texas DAPA, 809 

F.3d at 187 (same). It should weigh whether “the threatened injury outweighs 

any harm that may result from the injunction to the non-movant” and whether 

“the injunction will not undermine the public interest.” Valley v. Rapides 

Parish Sch. Bd., 118 F.3d 1047, 1051, 1056 (5th Cir. 1997). 

To “weigh the equities,” this Court should balance the competing claims of 

injury and consider the effect on each party of the granting or withholding of 

the requested relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). 

To determine whether an injunction would undermine the public interest, this 

Court should consider the public interests that may be injured and those that 

may be served by granting or denying the injunction. Texas v. United States, 

555 F. Supp. 3d 351, 436 (S.D. Tex. 2021) (collecting cases). 

The balance of the harms favors granting a preliminary injunction because 

Texas’s harm is immediate, irreparable, and continues to occur. Texans have 

a significant interest in maintaining the health and safety of their state. 

Conversely, the Defendants face essentially no harm from maintaining the 

status quo. Any inefficiency resulting from an injunction inhibiting the 

Executive is outweighed by the financial losses Texas will incur and the 

damage that increased illegal immigration will do to its citizens. United States 

v. Escobar, No. 2:17-cr-529, 2017 WL 5749620, at *2 (S.D. Tex. Nov. 28, 2017)

citing United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976).

Also, the public is served when the law is followed. Texas v. Biden (“Texas 

MPP Stay”), 10 F.4th 538, 559–60 (5th Cir. 2021), quoting Washington v. Reno, 

35 F.3d 1093, 1102 (6th Cir. 1994). On the other side of the ledger, “there is 

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generally no public interest in the perpetuation of unlawful agency action.” 

Texas MPP Stay, 10 F.4th at 560; Daniels Health Scis., LLC v. Vascular Health 

Scis., LLC, 710 F.3d 579, 585 (5th Cir. 2013). Our system does not permit 

agencies to act unlawfully even in pursuit of desirable ends. Ala. Assn. of 

Realtors v. Dept. of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The

balance of the equities weighs in favor of an injunction. Accord Texas Title 42, 

2022 WL 658579, at *19–20. 

V. Conclusion 

Texas respectfully requests that the Court preliminarily enjoin the 

Defendants from implementing the Interim Final Rule or, in the alternative,

order under 5 U.S.C. § 705 postponing the Interim Final Rule’s effective date 

until after final judgment has been rendered. Texas further respectfully 

requests all other relief to which it may be entitled.

 

Dated May 23, 2022. Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

/s/ Aaron F. Reitz

AARON F. REITZ

Lead Counsel

Deputy Attorney General for Legal Strategy

Texas Bar No. 24105704

aaron.reitz@oag.texas.gov

LEIF A. OLSON

Special Counsel

Texas Bar No. 24032801

leif.olson@oag.texas.gov

GENE P. HAMILTON

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

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(202) 964-3721

gene.hamilton@aflegal.org 

Counsel for the State of Texas

Certificate of Service

I certify that on May 23, 2022, this brief was filed through the Court’s 

CM/ECF system, which served it upon all counsel of record.

/s/ Aaron F. Reitz

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