WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in a Texas federal district court urging the court not to dismiss a case against a new Biden Administration rule making asylum easier and faster than before. The rule seeks to achieve greater ease and speed in the asylum process by transferring the authority to make final grants of asylum from immigration judges, where it now resides, to the federal employees known as asylum officers.
In its brief, IRLI shows that this transfer is blatantly unconstitutional. Under the Appointments Clause, government actions bearing the authority of the United States must be performed by properly-appointed officers of the United States. Undoubtedly, final grants of asylum, which have far-reaching consequences, including a path to citizenship for recipients, are acts bearing the full authority of the United States.
Yet, by statute, asylum officers (despite their title) lack the discretion and scope of duties necessary to make them officers of the United States, as opposed to mere federal employees. By contrast, immigration judges, whose discretion and responsibilities are wide, are officers, and thus are the appropriate officials to make final decisions on asylum applications.
“It is obvious what Biden is doing: expanding asylum radically by instructing lower-level federal employees to rubber-stamp applications,” said Dale L. Wilcox, executive director and general counsel of IRLI. “But such an important act as granting asylum must be performed by an officer appointed by the president or other prominent official, so that asylum is at least granted, with deliberation, by officers accountable to the people, not by faceless minor bureaucrats operating an assembly line. We hope the court sees the crucial constitutional values imperiled by this new system, and rules against the administration.”
The case is Texas v. Mayorkas, No. 2:22-cv-00094 (N.D. Tex.).
