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Texas AG sues Biden administration over proposal that would revamp the asylum process

In this May 11, 2021, file photo, migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border in La Joya, Texas.
Gregory Bull
Migrant women carry children to an intake area after turning themselves in upon crossing into the U.S. from Mexico last year.

As the state of Texas mounts yet another legal challenge to the Biden administration’s border policies, some groups say Attorney General Ken Paxton doesn’t fully understand the president’s proposed changes to the legal asylum process.

But these immigrant rights and legal groups aren’t necessarily in lockstep with the White House either and have their own concerns about the policy changes Paxton is suing to stop.

Paxton on Thursday filed a lawsuit to block a sweeping change to asylum procedures that the Biden administration announced in March and scheduled to go into effect in late May. It would allow trained asylum officers to decide some asylum cases instead of them being processed through U.S. immigration courts. The change is meant to not only expedite some cases but also reduce the record-high backlog of pending asylum cases. There are currently more than 671,000 pending asylum cases in U.S. courts, including about 67,500 in Texas, according to data compiled by researchers at Transactional Research Access Clearinghouse at Syracuse University.

Under the plan, some asylum seekers could be released on parole pending the outcome of their cases, a move Paxton asserts will be an incentive for people to illegally enter the United States.

“The last thing Texas needs is for this Administration to make it easier for illegal aliens to enter the U.S. and obtain asylum through false claims and less oversight,” Paxton said in a statement. “We know what’s going to happen when the rule goes into effect in May 2022: wave upon wave of illegal aliens claiming ‘asylum.’”

Paxton alleges in the lawsuit, which was filed in Amarillo, that Texas will face “irreparable harm” if this is allowed to happen.

“Texas spends significant amounts of money providing services to illegal aliens because of the United States government’s failure to enforce federal law,” the complaint states. “Those services include education services and healthcare, as well as many other social services.”

Edna Yang, co-executive director of American Gateways, a Texas-based organization that provides legal services to low-income immigrants, told The Texas Newsroom that Paxton’s “loophole” argument is somewhat off base.

“Paxton’s claim that this is a loophole that takes power and authority away from the immigration judges to grant asylum and gives it just to asylum officers is not totally correct,” said Yang. “There is authority given to the asylum officers but ultimate authority in these cases in review does rest with the immigration courts and the immigration judges.”

Yang added that under current policy, some asylum offices already accept and adjudicate applications for relief if a person is not in removal proceedings.

Though Yang credited Biden with trying to unclog the backlog in a way that still allows an asylum applicant to legally petition for relief, she said there are concerns about whether an applicant will be able to supply enough information to the government under the plan.

“What we advocate for and what I believe a lot of individuals in this country believe in is this idea of justice and the ability of individuals to efficiently access the justice system while having their rights protected. The administration is trying to do that, whether this is the most effective way is still to be seen,” she said. “I think there are some due process concerns because of the lack of an asylum application, where there are accurate interpretation issues that are going to occur, [and] the ability for individuals to get some corroborating evidence because they are detained. We have some concerns about that.”

Fernando Garcia, executive director of the El Paso-based Border Network for Human Rights, said his apprehension over the policy comes from a longstanding mistrust of border agents and enforcement officers.

“I don’t trust that they are making the decision in the best interest of the petitioner. I think they are given a powerful tool to accept or reject asylum cases,” he said. Because asylum is a detailed and complicated process, he added, he is concerned about petitioners lacking an attorney or advisor.

“Because they are trying to fast track these kinds of cases of asylum at the border, many of these petitioners will not have access to proper legal representation and proper legal advice,” he said. “We might have people going through this fast-track asylum process to be denied and be deported rapidly.”

With respect to Paxton’s lawsuit, Garcia added it was just par for the course from a politically motivated attorney general.

“Unfortunately [Paxton] has been representing a more anti-immigrant and refugee stance rather than anything else,” Garcia said.

It’s that rhetoric that leads some asylum seekers to rely on criminal elements to make their way to the United States instead of seeking help from established organizations, said Juanita Molina, the executive director of the Border Action Network.

“There is no way to ignore the criminal organizations that are moving things along the border and my belief is that our U.S. policies — and especially the increased restrictions on people crossing into the United States and the criminalization of a very human process of people seeking safety — is what creates and fortifies the cartels all throughout the border,” she told The Texas Newsroom. “It’s like putting out meat for the wolves. People know the more vulnerable that you maintain a population, the more invisible [they are].”

The Texas Newsroom's Joseph Leahy contributed to this story.

Copyright 2022 KERA. To see more, visit KERA.

Julián Aguilar is a digital breaking news reporter and producer for The Texas Newsroom.
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