Texas Sues Mayorkas Over Unlawful CBP One App Port Entries

The CLAP rule ‘is unlawful, unconstitutional, and unenforceable’

By Andrew R. Arthur on May 25, 2023

In a recent post, I asked “Why Isn’t Florida Asking the Courts to Block Biden’s Mass Release Scheme at the Ports?”, specifically focused on the administration’s recently implemented plan to funnel hundreds of thousands of would-be illegal migrants using the CBP One app through the Southwest border ports of entry. Perhaps I had the wrong state, because on May 23 Texas stepped up to challenge the facially illegal policy.

CBP One App Port Entries. In a January 5 fact sheet titled “Biden-⁠Harris Administration Announces New Border Enforcement Actions” (which actually contained little if any “enforcement”), the White House announced 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 lot of misstatements of fact in that excerpt, starting with the claim that would-be illegal migrants would only be allowed to schedule appointments for interviews at the border ports of entry once “Title 42 lifted” on May 11.

In reality, such a program had already been ongoing for months when that fact sheet was issued, as my colleague Todd Bensman revealed last November.

A much more significant falsehood in that excerpt is the contention that the aliens who would be scheduling such appointments would be “seeking to enter the United States lawfully”.

By definition, none of those aliens would have the visas and/or other documents that they need to enter the United States lawfully — if they did, they wouldn’t be applying for appointments at the ports, they would just show up. What that fact sheet is really proposing is akin to standing in front of a turnstile at a baseball game without a ticket and demanding admission, and asserting you are doing so “lawfully”.

The “CLAP”. In any event, on May 16, DHS and DOJ issued a final regulatory rule captioned “Circumvention of Lawful Pathways” (which my colleague George Fishman has helpfully shortened to “CLAP” for convenience’s sake), backdated to May 11.

Under the CLAP rule, aliens who cross the border illegally between the ports without applying for asylum in a country they passed through on their journeys here are subject to a “rebuttable presumption” that they’re not eligible for asylum and should be removed (although all available evidence suggests — not surprisingly — that the latter is not happening).

By contrast, aliens who “avail themselves of” what the CLAP rule terms “a lawful, safe, and orderly pathway to the United States” by applying for an interview through the CBP One app at a port of entry are processed under the normal asylum rules.

Nothing about the CBP One port interview process is “safe” because as the CLAP rule explains, “the ability to schedule an appointment through the CBP One app is available only to migrants located in central and northern Mexico”.

That requires those migrants to actually make it to central or northern Mexico, which in turn means they have to either hire a smuggler to get there or make a (even more dangerous) transit to central Mexico to use the app. That’s why, as I have explained elsewhere, “both the administration’s policy and that app will have real blood on their metaphorical hands”.

Texas v. Mayorkas. It’s not “legal”, either, which brings me to Texas’ latest lawsuit, captioned Texas v. Mayorkas. The state’s complaint explains:

The Biden Administration is inviting tens of thousands of aliens into Texas, releasing them into the country, and inflicting serious costs on the State of Texas. The Biden Administration’s attempt to manage the southern border by app does not meet even the lowest expectation of competency and runs afoul of the laws Congress passed to regulate immigration.

As Texas argues, section 235(b) of the Immigration and Nationality Act (INA) mandates that DHS detain all aliens CBP encounters entering illegally or deems inadmissible at the ports of entry, and hold them until they are either removed from the United States or granted asylum.

It concedes that DHS does have extremely limited authority under section 212(d)(5)(A) of the INA to release such aliens on parole, but under that statute it may do so “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

In contrast to those legal limitations, the state contends — aptly — that “the Biden Administration has a history of paroling aliens en masse”.

The only form of relief from removal that aliens who present themselves at the ports of entry without admission documents may be eligible for are humanitarian protections, such as asylum.

The CLAP rule admits, however, that CBP officers at the ports are not authorized to grant asylum or any other form of protection; under the INA, such protection may only be granted by an immigration judge in removal proceedings.

Despite that, Texas complains, “The CBP One app does not ask migrants whether they intend to seek asylum”, and in fact, the CBP officers at the ports (erroneously identified in the complaint as “Border Patrol agents”) don’t “ask whether the migrants intend to seek asylum”, either.

If true, that contradicts the contention in the January 5 White House fact sheet that illegal migrants will “have access to the CBP One mobile application ... to initiate a protection claim”. But nothing I have seen suggests that Texas is not correct.

Thus, the state asserts, the Biden administration is “encouraging aliens to illegally cross the border without establishing that they meet some exception from removal or have a legal basis to remain in the country”.

Texas further alleges that “Should a migrant fail to qualify for asylum or other protection from removal, DHS has “abetted the aliens’ violation of federal law — and affirmatively invited them to do so”, a concession that I would not have made. The simple release of such aliens “abets their violation of federal law”, long before and regardless of whether they are deemed eligible for protection or not.

The state argues that this Biden administration CBP One port appointment scheme violates the Administrative Procedure Act (“APA”, which governs administrative rulemaking), in that it exceeds the statutory authority of DHS and DOJ and is “not in accordance with law”.

Moreover, and as a second basis for its claims, the state contends that the CLAP rule also violates the APA in that it is “arbitrary and capricious”, on two separate grounds.

First, although that rule “purports to reduce illegal immigration”, the state claims that in reality it “is rife with concessions that this rule will operate to increase the number of illegal aliens processed at the border”. That fact should be beyond cavil — but expect the administration to contest it anyway.

Second, the state maintains, DHS and DOJ failed to consider the effects of the CLAP rule on Texas, asserting that:

While the rule says the “Departments expect that this rule will result in decreased strain on border states, local communities, and NGOs,” the rule cites no data supporting this assertion and includes no analysis of costs to Texas as a result of this Final Rule.

Foolhardy hope is no substitute for empirical data, though I doubt that whoever cobbled this Rube Goldberg contraption together even did so in the hope it would limit illegal border entries. It instead smacks of 11th-hour desperation.

In any event, keep in mind that an agency’s failure to engage in at least some analysis of the impacts of a rule on the most affected localities is the sort of APA bait that district court judges feed on.

As relief, Texas asks the court to declare that the administration is violating the law and that the CLAP rule “is unlawful, unconstitutional, and unenforceable”, and further to enjoin the administration from implementing it.

Florida state Attorney General Ashley Moody recently complained that Biden’s DHS has been playing a “game of whack-a-mole” with border migrant releases, and the CLAP rule certainly fits that description. Fortunately, the state of Texas has decided to “clap back”.