Participating attorneys general include Indiana’s Todd Rokita, North Dakota’s Drew Wrigley, Daniel Cameron of Kentucky, Ashley Moody of Florida, Brenna Bird of Iowa, Virginia’s Jason Miyares, and Missouri’s Andrew Bailey. The rule exceeds the federal government’s statutory authority because the Immigration and Nationality Act “strictly limits defendants’ exercise of the parole power, yet the main exception that the rule relies on is the unlawful programmatic grant of parole to aliens,” the AGs say. “The real purpose of the Circumvention Rule is to incentivize” immigrants to use the border patrol app “to make bogus asylum claims, all while avoiding the bad optics of crowds of illegal aliens,” the complaint alleges. The exceptions “unlawfully circumvent US immigration law” and would allow “aliens not entitled to admission” into the US, the attorneys general allege. The rule’s rebuttable presumption of asylum ineligibility is lawful, but “the exemptions to that rebuttable presumption are not,” the state AGs say in a complaint filed Wednesday in the US District Court for the District of North Dakota. The rule provides that noncitizens who cross the southern border are presumed ineligible for asylum unless they, or a family member they’re traveling with, were authorized to travel to the US under a DHS-approved parole process they used the border patrol app to schedule a time and place to present at a port of entry, or show were unable to access the app or they were denied asylum in a third country en route to the US. The Circumvention of Lawful Pathways rule, which took effect on May 11, is intended to respond to an expected increase in immigration after the lifting of a public health order that allowed the Centers for Disease Control and Prevention to suspend entry to the US to protect public health in response to the Covid-19 pandemic.

A group of 18 Republican state attorneys general filed suit in a North Dakota federal court challenging the Biden administration’s new emergency immigration rule.

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