Biden’s DOJ Suing Elon Musk’s Space X for Discrimination Against Asylees, Refugees

An odd target for an administration that values ‘prosecutorial discretion’

By Andrew R. Arthur on August 30, 2023

On August 24, the Department of Justice announced it had “filed a lawsuit ... against Space Exploration Technologies Corporation (SpaceX) for discriminating against asylees and refugees in hiring”. The Elon Musk-controlled company is an odd target for the Biden administration, which has publicly stated its interest in “prosecutorial discretion” when it comes to alien-related matters, for any number of reasons.

OCAHO. Fortunately, DOJ’s press office linked to the complaint, which the department filed with itself. Seriously, the matter is pending before the Department of Justice’s own Executive Office for Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO).

That might sound strange today, but it would not have been that unusual 20 years ago, before the then-Immigration and Naturalization Service (INS) — itself a DOJ component — placed aliens into removal proceedings before the immigration courts, which like OCAHO are a tribunal within EOIR.

The Homeland Security Act of 2002, however, abolished the INS and sent its constituent parts to, among others, ICE (for interior immigration enforcement), CBP (for border and port enforcement), USCIS (for immigration adjudications), and the Department of Health and Human Services’ Office of Refugee Resettlement (“ORR”, for sheltering unaccompanied alien children).

My colleague George Fishman and I participated in the dissection of INS while drafting that legislation, and the best I can say is that the split between immigration enforcement and adjudications made sense at the time. The CBP/ICE divide is purely on the George W. Bush administration, however, while the ORR UAC debacle should be blamed on the congressional Democrats who insisted on it at the time.

OCAHO, however, was my first post-law school home; I was a law clerk there in the early 1990s during a time when the job market for JDs with little experience was tight, and defense firms weren’t a key priority for lawsuits.

I figured that if I had never heard of the place, few of my newly minted colleagues would have, either, and thus the competition for employment there wouldn’t be so fierce. So was born my three decades and counting immigration career. So, what does OCAHO do?

As OCAHO’s website explains, administrative law judges (ALJs) there decide cases brought under three provisions of the Immigration and Nationality Act (INA), all fairly arcane: (1) section 274A of the INA, which governs penalties for the knowing hire of unauthorized aliens, known as “employer sanctions”; (2) what are referred to as “immigration-related unfair employment practices” in violation of section 274B of the INA; and (3) fraud involving immigration documents in violation of section 274C of the INA.

The penalties assessed are civil, not criminal, in nature, so while those ALJs may order offenders to change their ways and pay some cash, they aren’t putting anyone in jail for their transgressions. Section 274A and 274C cases are generally brought by ICE (when they are brought at all), but section 274B is the province of the Immigrant and Employee Rights Section (IER) at DOJ’s Civil Rights Division.

U.S. v. Space Exploration Technologies Corp. d/b/a SpaceX. Which brings me to the lawsuit, a matter formally captioned U.S. v. Space Exploration Technologies Corp. d/b/a SpaceX.

IER alleges that SpaceX engaged in a “pattern or practice of discrimination” under section 274B(a)(1)(B) of the INA by discouraging asylees and refugees from applying to work there, by failing to “fairly consider” asylees and refugees who applied to work for the company, and by refusing to hire qualified asylees and refugees.

Under that provision of the INA, it’s a civil offense to discriminate against any “protected individual” when it comes to hiring, firing, or recruitment or referral for a fee. Discrimination based on national origin is covered by a separate subparagraph (A).

“Protected individual”, in turn, is defined in section 274B(a)(3) of the INA (in pertinent part) as: “(A) ... a citizen or national of the United States, or (B) ... an alien who is lawfully admitted for permanent residence, ... is granted the status of an alien lawfully admitted for temporary residence ... is admitted as a refugee ... or is granted asylum”.

Be grateful that’s the “pertinent part” version, because I spared you a lot of confusing verbiage about permanent residents who fail to apply for naturalization within six months of the date they’re first eligible, and the ones who do apply within that time period but aren’t naturalized for two years, which is also subject to its own exceptions.

In any event, section 208 of the INA governs the process by which aliens in the United States may apply for and be granted asylum, while section 207 of the INA provides the law under which foreign nationals may be admitted to the United States as refugees.

Neither asylum nor refugee status is an “immutable characteristic”, that is, something that the holder of that status is unable to change.

In fact, section 209 of the INA requires refugees to return to DHS after a year of being here to determine whether they remain admissible to the United States. If they are not inadmissible (due to a criminal conviction, for example), they may be granted permanent resident status, i.e., a “green card”.

As for aliens granted asylum (known colloquially but not legally as “asylees”), section 209 allows them to also apply for green cards after a year, and they are eligible for permanent resident status assuming they are still eligible for asylum status (that is, they continue to have a well-founded fear of persecution) and are not inadmissible under the INA.

The whole point of the suit is that SpaceX officials kept publicly stating that they only hired citizens and aliens with green cards and that they refused to hire any refugee or asylee who didn’t have one, although apparently the company did hire one asylee after IER started sniffing around SpaceX’s hiring practices.

ITAR and EAR. One of the specific allegations in that complaint reads as follows:

On June 16, 2020, SpaceX's CEO, who then had approximately 36 million followers on X, a social media platform formerly known as Twitter, posted, "U.S. law requires at least a green card to be hired at SpaceX, as rockets are advanced weapons technology."

Note that Musk’s name never appears in that complaint, but if anybody else at SpaceX had 36 million followers on “X, a social media platform formerly known as Twitter” in June 2020, I’d like to meet that person to get some popularity tips. In fact, on June 16, 2020, Musk tweeted the following:

If some provision of the INA — however obscure — says that SpaceX can’t refuse to hire asylees and refugees, however, why would a multi-billionaire who likely has quite the stable of high-priced legal talent think that "U.S. law requires at least a green card” to work at his rocket company?

That brings me to two more obscure (to me, at least) federal regulations: the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). It appears that when DOJ’s Civil Rights Division first started asking about SpaceX’s hiring practices, export control restrictions under ITAR and EAR were the company’s rationale for whom it hired and didn’t.

I say “it appears” because the complaint doesn’t come out and say that, although that complaint does state that IER “opened an independent investigation of SpaceX” on May 29 and was in contact with the company starting in early June, though it’s not clear what was discussed. That said, that quote itself requires some explication.

First, note that IER can either do 274B investigations in response to complaints that it receives from private individuals who felt they weren’t treated fairly in the hiring or firing process, or it can open investigations on its own accord. This complaint appears to arise from the latter, and that there was no disappointed SpaceX hopeful who put this case on the office’s radar.

Second, while the Civil Rights Division has published an “employer fact sheet” captioned “How to Avoid Immigration-Related Discrimination when Complying with U.S. Export Control Laws”, that fact sheet is dated April 2023 — a month before IER opened its “independent investigation”.

Perhaps IER decided in the spring that whether alien engineers are improperly being denied jobs in defense-related industries is a major civil rights issue in the second decade of the 21st century, but both the timing and the subject matter of that fact sheet are a little suspicious.

Even more suspicious is the fact that this fact sheet begins:

What are export control laws and regulations?

U.S. export control laws and regulations include:

  • The International Traffic in Arms Regulations (ITAR)
  • The Export Administration Regulations (EAR)

These regulations restrict an employer’s ability to export certain goods and software, technology, and technical data (referred to here as export-controlled items). Under these regulations, U.S. persons working for U.S. companies can access export-controlled items without authorization from the U.S. government.

Respectfully, if you’re an employer who may be involved in an industry subject to ITAR or EAR and you need an explanation of what those regulations even do, you may think about getting into a less heady line of work. This sheet is marginally helpful for luddite immigration pundits, but it doesn’t seem to add much to the skill set of high-tech professionals who can legally make things go “boom”.

Back to Refugees and Asylees. Even then, however, I must take IER’s contentions that neither ITAR nor EAR bar refugees and asylees from working at companies subject to those regulations at face value because that fact sheet basically just tells me to read those (rather dense) regulations and call a helpline or check out a different website if I have any questions.

What I am clear about is that refugees and asylees are “protected individuals” for purposes of section 274B of the INA. So why was SpaceX reluctant to hire them?

Here’s what Musk himself tweeted out in response to a tweet that pointed out the gray area between federal export controls on the one hand and section 274B restrictions on the other:

While I take no side with respect to the issue of whether “this is yet another case of weaponization of the DOJ for political purposes”, libertarian Musk likely has few fans within the Biden administration. That said, could he have other concerns?

I know nothing about rockets and satellites and the science behind them, but I assume it all involves cutting-edge technology that neither the U.S. government nor (and especially) those companies want to fall into the hands of their competitors — geopolitical or industrial.

And it’s safe to say that among our major geopolitical competitors is China. As the Center for Strategic and International Studies (CSIS) explains:

Chinese espionage is undertaken in pursuit of China’s strategic objectives. This is a change from the past where commercial motives were often equally important, but commercial espionage by both private and government entities remains a feature of Chinese spying. When Xi Jinping took office, first as Chair of the Central Military Commission in November 2012 and after he became President in March 2013, one of his first acts was to repurpose and reorient China’s collection priority to better serve long-term goals, clamping down on what appeared to be collection by some PLA units intended for personal gain (i.e. stealing commercial technology and providing it to private companies for cash or favors) as part of his larger campaign against corruption.

EOIR’s own statistics reveal that in the first half of FY 2023, immigration judges (IJs) granted asylum to more Chinese nationals (1,839) than nationals of any other country; Chinese asylum cases were granted 57 percent of the time during that period, while they were denied just 11 percent of the time.

While asylum applicants must pass background checks before they receive final grants, those checks are based on what the U.S. government has in its own databases and — in extremely rare cases (much less than 0.1 percent of the total) — what can be gleaned from in-country investigations by the State Department.

The “PLA” referred to in that CSIS excerpt is the Chinese “People’s Liberation Army”, and good luck to any IJ in Newark who’s hoping to get information from that army’s muster roles. Even if the State Department was told by Beijing that it considered a given applicant (with a resume that would open doors at a company like SpaceX) to be a traitor to the country and the party, would you believe that to be true?

I’m not saying that all Chinese asylum applicants are PRC plants, or that any of them are. All I’m saying is that the U.S. asylum system is not meant to screen out potential espionage threats. It’s basically meant to root out fraud and assess the legality of claims as presented.

And even on those counts, it’s lacking. The last time that USCIS even investigated the rate of fraud in the asylum process, in the early 2000s, it found that only 30 percent of cases from a random sample of 239 claims were fraud-free. Worse, 29 (or 12 percent) were determined to be fraudulent, and 12 of those cases had already been granted.

Again, I know nothing about rocket science, but I know a lot about asylum. Whatever government officials make the ITAR and EAR rules may want to ask around about the susceptibility of the asylum process to fraud.

“Prosecutorial Discretion”. Prosecutorial discretion — the inherent authority of a law-enforcement agency or prosecutor not to enforce the law — is a touchstone (if not hobbyhorse) of the Biden administration’s non-enforcement of the INA.

When the administration wants to contravene congressional detention mandates to release millions of illegal migrants at the Southwest border, it turns to prosecutorial discretion. When it refuses to allow ICE to even investigate dangerous criminal aliens, that’s prosecutorial discretion, too. Tank nearly 92,000 removal cases pending in the immigration courts in FY 2022? Why not, the administration says, it has prosecutorial discretion to waste government resources.

The administration is so rapturously enamored with prosecutorial discretion that in a September 2021 memo explaining why it was free to ignore most criminal aliens in the interior, DHS Secretary Alejandro Mayorkas quoted the late Justice Robert Jackson, who told a group of U.S. Attorneys in 1940:

Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.

Mayorkas added, less poetically: “The use of prosecutorial discretion to advance the interests of justice is built upon years of precedent.”

I know little about export control laws and regulations, but who can say with a straight face that “justice will have been done” regardless of the outcome in U.S. v. SpaceX, a case brought by DOJ alleging unfair immigration-related employment practices against a major defense contractor without a single asylee or refugee even filing a discrimination complaint? I’d never countenance any sort of discrimination, but I think I know what the late Justice Jackson would think.