North Dakota joins lawsuit against Biden administration following new border policies

Jun. 1—GRAND FORKS — North Dakota, along with 17 other states, has filed a lawsuit against the Biden administration in response to the new "Circumvention of Lawful Pathways" rule, which would provide asylum for some qualifying noncitizens who cross U.S. borders.

North Dakota Attorney General Drew Wrigley believes the rule is unlawful and encourages illegal immigration.

"Rather than enforcing our border security laws, the federal government is encouraging illegal aliens to schedule their entry into this country through a phone app, after which they predictably disperse around the country without any meaningful oversight," Wrigley said in a statement.

The Department of Homeland Security rule would provide asylum for noncitizens who cross the southern U.S. border or adjacent coastal borders without authorization if they meet one of three exceptions:

* They were authorized to travel to the U.S. for a DHS-approved parole process

* They scheduled an appointment to present at a port of entry using CBP One (a mobile app that directs users to appropriate U.S. Customs and Border Protection services), or presented without using the app because it was impossible for them to do so

* They were denied asylum in a third country while en route to the U.S.

The rule also established a rebuttal process for migrants deemed ineligible for asylum. To be eligible for the rebuttal process, migrants or a family member traveling with them must have faced an acute medical emergency, an extreme and imminent threat to their life or safety, or a severe form of trafficking when they illegally entered the U.S.

The rebuttable presumption would not apply to children who enter the U.S. unaccompanied.

According to the DHS, the rule is designed to address a surge in migration by encouraging migrants to use lawful, safe and orderly processes for entering the U.S., imposing conditions on asylum eligibility for those who fail to do so, and swiftly deporting migrants who do not have "valid protection claims."

In a release announcing that North Dakota would join the federal lawsuit to halt the policy, Wrigley said the new rule instead redefines "previously illegal border crossings as 'lawful pathways.'"

"A phrase you hear a lot is 'federal overreach,'" Wrigley said in an interview with the Herald. "This is more like federal underreach."

The civil complaint states the exemptions to the rebuttable presumption and the "unreasonably vague" factors allowing noncitizens to rebut the presumption are unlawful.

North Dakota joins the lawsuit with Indiana, Alaska, Arkansas, Florida, Idaho, Iowa, Kentucky, Mississippi, Missouri, Montana, New Hampshire, Oklahoma, South Carolina, Tennessee, Utah, Virginia and Wyoming.

Defendants in the case include the United States of America, DHS, CBP, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Border Patrol, Department of Justice, Executive Office for Immigration Review and high-ranking officials within these agencies.

The complaint states that encounters with undocumented immigrants in the U.S. are the highest they've been in at least two decades.

DHS data shows there were 1.4 million undocumented immigrants who evaded border patrol agents between Fiscal Year 2021 and March 15, according to the complaint. Between Oct. 1, 2022, and March 15 there were 385,000.

The complaint says rates of illegal immigration increase when noncitizens believe they'll be released into the U.S., rather than being held at a detention center, and the state plaintiffs believe they will "be forced to bear the cost" of increased illegal immigration.

There are between 6,000 and 9,000 undocumented immigrants living in North Dakota, including their children, according to the complaint. This is estimated to cost between $27 million and $36 million a year.

Costs include public education, health care (such as Emergency Medicaid), detention, incarceration, law enforcement and public assistance, according to the complaint.

Under federal law, noncitizens paroled into the U.S. become eligible for benefits such as Medicaid, SNAP and Temporary Assistance for Needy Families (TANF) after five years.

"Because these benefits are paid by State agencies and are partially financed from State budgets, the Circumvention Rule will increase the States' costs because higher numbers of aliens being paroled into the United States will cause a higher number of individuals claiming benefits in each Plaintiff State," the complaint said.

Other concerns outlined in the complaint are drug smuggling, danger in border communities and public health risks.

Wrigley told the Herald that the bottom line of the lawsuit is the financial aspect, but there are other factors — including societal aspects, such as impacts on the criminal justice system, government programs and services, school systems, spacing needs and health care.

"All burdens that were not contemplated, were not invited and are not legal," Wrigley said. "They're being thrusted on the state of North Dakota, and the other mitigating parties in this regard."

Though data hasn't been collected on these impacts, it's not a stretch to assume that people who immigrate illegally will have needs for services, Wrigley said.

"I'm not raising any of this to be cold hearted," he said. "I'm not cold hearted a bit. These are the hard realities of illegal immigration. It's a danger to our national sovereignty. It's a danger to our national security. It is an unlawful undermining of the communities all across the United States. That's the reality of it."