An 18-state coalition has filed suit in the U.S. District Court for the District of North Dakota to block the Biden administration’s efforts to funnel illegal migrants through the ports of entry. One element of that effort, the “CBP One app interview scheme” was officially implemented by a rule published on May 16 captioned “Circumvention of Lawful Pathways”, which my colleague George Fishman has abbreviated as the “CLAP Rule”. Another element, also included in the rule but underway for months, allows nationals of certain countries abroad to seek two-year grants of parole. As the complaint in the case (captioned Indiana v. Mayorkas) puts it, the rule “is an accounting exercise allowing” Biden “to claim that illegal entries have decreased. In reality, though, the [CLAP rule] will drastically incentivize increased illegal immigration into the United States and lead to an explosion in the population of unlawful alien residents in the States.”
“VNHC Parole Program” for Venezuelans, Nicaraguans, Haitians, and Cubans. A January 5 White House fact sheet titled “Biden-Harris Administration Announces New Border Enforcement Actions” explained:
Today, the Biden Administration is announcing it will extend the successful Venezuela parole process and expand it to nationals of Nicaragua, Haiti, and Cuba. Up to 30,000 individuals per month from these four countries, who have an eligible sponsor and pass vetting and background checks, can come to the United States for a period of two years and receive work authorization. Individuals who irregularly cross the Panama, Mexico, or U.S. border after the date of this announcement will be ineligible for the parole process and will be subject to expulsion to Mexico, which will accept returns of 30,000 individuals per month from these four countries who fail to use these new pathways.
For brevity’s sake, I have termed that proposal the “VNHC parole program”, and there are both carrots (the promise of at least two years to work and live in the United States) and sticks (potential removal to Mexico) for nationals of those four countries in that proposal, but a lot more of the former than the latter, especially now that expulsions of illegal migrants under Title 42 have expired.
That’s doubly true given that on January 9 the administration published separate notices in the Federal Register on its implementation of this parole program for nationals of Venezuela, Nicaragua, Haiti, and Cuba, which permit those who bypass the parole program and enter illegally “a one-time option to voluntarily depart or voluntarily withdraw their application for admission to maintain eligibility to participate in this parole process”. As if Border Patrol agents have nothing better to do.
The CBP One App Interview Scheme. The CBP One app interview scheme was publicly announced in that January 5 fact sheet as well, wherein the White House proclaimed that:
When Title 42 eventually lifts, noncitizens located in Central and Northern Mexico seeking to enter the United States lawfully through a U.S. port of entry have access to the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait. This new feature will significantly reduce wait times and crowds at U.S. ports of entry and allow for safe, orderly, and humane processing.
There are a number of misstatements of fact in that excerpt, including the assertion that would-be illegal migrants could only schedule appointments for interviews at the border ports of entry once “Title 42 lifted” on May 11. My colleague Todd Bensman blew the lid off the scheme in November.
The biggest whopper above, however, is the claim that aliens attempting to enter the United States through the ports of entry are “seeking to enter the United States lawfully”. As I explained on June 5, under the inspection rules set forth by Congress in section 235 of the Immigration and Nationality Act (INA), they’re not.
Indiana v. Mayorkas. In Indiana the states ask the court to declare the CLAP rule — which they describe as “some combination of a half measure and a smoke screen” — unlawful and to vacate it.
They complain, correctly, that “the Administration’s reckless open borders policies” are driving what the states describe as “the current once-in-a-century border crisis — whereby millions of aliens have illegally crossed the border, flooded American communities, and stretched to the breaking point state and local social services and education systems”.
That latter assertion dovetails with the states’ contention that they will suffer very real injuries as a result of the administration’s failure to stem the flow of illegal entrants by detaining them, as I have explained the INA requires. The administration’s release of illegal migrants into the United States, they claim, “will cause the Plaintiff States to spend money on healthcare, detention, education, and other services for aliens that would otherwise not have to be spent”.
Further, they note:
Such aliens rarely leave the United States of their own accord, and Defendants rarely remove such aliens, even after their asylum or other immigration claims have been denied. The [CLAP rule] will therefore increase the Plaintiff States’ costs of providing emergency medical care to these individuals who would otherwise never have been allowed into the United States.
The states advance eight separate legal bases for their claims that the CLAP rule violates federal law, most of them premised on failures to comply with the Administrative Procedure Act (APA), which governs administrative rulemaking.
Five of those legal bases are largely technical, having to do with the way the executive branch must promulgate rules and the states’ avenues for relief to challenge them. That’s not to say that those arguments are unimportant, but they’re primarily based in administrative, not immigration, law, and in any event my explanation would make your eyes glaze over.
Most critically from an immigration perspective, three of those bases have to do with alleged violations of the INA, other similar enforcement statutes, and the intricate system Congress has crafted for the admission of aliens.
Section 212(d)(5)(A), the “Parole Statute”. First, echoing a point Fishman and I have underscored repeatedly in the past, the states argue that the CLAP rule violates the limitations Congress, in section 212(d)(5)(A) of the INA (the “parole statute”), has placed on DHS’s power to parole inadmissible aliens into the United States.
The parole statute states, in pertinent part, that DHS may, in its discretion, parole aliens applying for admission to the United States (including illegal migrants), but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
This claim attacks both CBP’s categorical parole of aliens who come to the ports under the CBP One app interview scheme (a reported 99 percent-plus of whom have been allowed into the country) and the VNHC parole program.
According to the states:
DHS lacks the authority to create a “parole process” involving the programmatic grant of parole to entire classes of aliens. And because these exceptions to the [CLAP rule] rely on an unlawful abuse of DHS’s extremely limited parole authority, the exceptions to the [CLAP rule] are unlawful.
Note that in his March 8 order in Florida v. U.S., U.S. district court Judge T. Kent Wetherell II relied on similar logic in finding that the Biden administration’s “Parole+ATD” release policy for illegal entrants violated the “case by case” requirement in the parole statute, and lower courts in Texas v. Biden have made similar findings in the same context.
The Supreme Court ducked the question of whether there are any limitations on DHS’s parole authority when it vacated a district court injunction of the Biden administration’s attempts to end the Migrant Protection Protocols (MPP) — better known as “Remain in Mexico” — in Texas.
At some point, however, the justices are going to have to tackle that issue head on, because the states aren’t giving up, and the administration — as in the CLAP rule — keeps pushing the limits of its parole statute authority.
Secure Fence Act. The second basis for the states’ request for relief in Indiana is an allegation that DHS in the CLAP rule is exceeding its statutory authority under the Secure Fence Act of 2006 (SFA), and thereby in turn violating the APA.
As I have explained elsewhere, the SFA requires the DHS secretary “to achieve and maintain operational control over the entire international land and maritime borders of the United States”.
“Operational control” is defined in the SFA as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”.
I have long contended that the administration’s non-detention policies at the Southwest border are more susceptible to court challenge on SFA grounds than even under the parole statute or section 235(b) of the INA because, whereas Biden’s DHS may argue that it has “prosecutorial discretion” to release aliens under those two INA provisions, it has no discretion to ignore a congressional mandate.
The complaint in Indiana puts a fresh gloss on that contention — and provides a roadmap for other state plaintiffs to follow. The states argue therein that the CLAP rule “violates the Secure Fence Act because ... rather than preventing unlawful entries into the United States, it incentivizes them”.
That’s beyond cavil, and the administration’s only real defense would be semantic, along the lines that migrant entries are only “unlawful” if DHS deems them so. Such an argument would likely be a little too close to Richard Nixon’s assertion that “when the president does it ... that means that it is not illegal” for most courts’ comfort as a matter of administrative law and separation of powers.
CBP One App. The third basis is the states’ explicit contention that the CBP One app interview scheme, which again facilitates the entry of aliens without visas allowing them to be admitted, “exists outside of, and entirely separate from, the actual system for issuing visas established by Congress”.
The states contrast this scheme with the visa-waiver process in section 217 of the INA, which as they explain “allows visa-free travel for temporary non-immigrant travelers”. They note that few if any of the migrants who utilize the CBP One app interview scheme come from visa-waiver countries, and continue:
Yet, even though Congress has clearly established that these aliens do not qualify for visa-free travel to the United States, Defendants have created by executive fiat what is essentially a parallel system for visa-free immigration to the United States for aliens from countries with populations with high risk of overstaying in the United States. The [CLAP rule] circumvents the process that Congress has created for immigration into the United States — it completely evades numerous limits that Congress has imposed, such as numerical quotas and caps, visa security requirements, required visa fees, security vetting, and affidavits of support to prove that aliens have sufficient financial support from friends and family to ensure that they will not become a burden on public resources. [Emphasis in original.]
Those latter points are — I have long argued — the fundamental reason why the Biden administration’s non-detention policies for illegal entrants violate the INA, and they are equally — if not more — applicable to the CBP One app interview scheme.
Echoing other points that I have made about the scheme (in nearly identical language), the states further complain that the CLAP rule “would turn the expedited removal process on its head”, in that: “Instead of being the intended procedure for quickly removing aliens from the United States, it turns the process into one for expediting the entry of illegal aliens into the United States to remain indefinitely.”
A New Effort in a Novel Venue. It should be noted that this is not the first such state effort. A separate coalition of states in a different case, Texas v. DHS, has filed a challenge to the VNHC parole program, and yet a different group of states in Texas v. Mayorkas are seeking to shut down the CBP One app interview scheme, which they assert “is unlawful, unconstitutional, and unenforceable”.
Indiana, however, offers the plaintiffs the opportunity to stop both unlawful programs on slightly different grounds, and it does so in a novel venue — as noted, the U.S. District Court for the District of North Dakota.
Both of the active judges on that court (Daniel M. Traynor and Chief Judge Peter D. Welte) were Trump appointees, while Judge Daniel L. Hovland, who is on senior status and thus hears fewer cases, was a George W. Bush appointee.
Note also that North Dakota is in the Eighth Circuit, while federal courts in Texas — the loci of the other two cases — are in the Fifth Circuit. Twelve of the 16 judges on the Fifth Circuit were appointed by Republicans (six by Trump), while of the 11 judges on the Eighth Circuit, 10 were Republican appointees (four appointed by Trump).
That does not mean that any of these judges will simply sign off on the states’ claims in Indiana, but get ready for allegations by many “experts” and some in the media that the states are “forum shopping”.
That’s a process argument, and as I have long asserted all process arguments are self-serving, but in any event, I heard few on the left complain about such forum shopping when Trump’s immigration policies were in the dock in the largely liberal Ninth Circuit.
Indiana is also a targeted effort, going after specific provisions in the CLAP rule. The states aren’t alleging that the administration’s efforts are wholly illegal because they don’t like them; rather, they contend that key provisions in the rule are illegal under the APA, INA, and SFA.
It’s impossible to know from the outside whether the CLAP rule was born of desperation or is instead the latest move in an intricate chess game being played from inside DHS and the White House. It’s been my contention, however, that both the CBP One app interview scheme and the VNHC parole program exceed the administration’s statutory powers, and now they are being put to the test.