On Wednesday, DHS Secretary Alejandro Mayorkas and Attorney General Merrick Garland transmitted the “Circumvention of Lawful Pathways” (CLAP) final rule to the Federal Register. In attempting to justify this farcically ineffectual rule regarding eligibility for asylum, Mayorkas and Garland warn that simply adhering to Mayorkas's own earlier, and highly touted, DHS Plan for Southwest Border Security and Preparedness would lead to disaster. Specifically, they wrote that last year's "Mayorkas Plan" would:
- “unduly impede DHS’s ability to fulfill its critical and varied missions”;
- “undermin[e] the Departments’ ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system” and “exceed the Departments’ capacity to safely and humanely process migrants”;
- result in illegal aliens “once processed ... be[ing] released into local communities that are already at or near their capacity to absorb them”;
- “result in potentially dangerous overcrowding at CBP facilities[ with] attendant risks to public safety, health, and welfare”;
- put a “severe strain on resources [for] DHS [and] and a substantial resulting impact on U.S. Government operations, as well as local communities”
- ”place additional pressure on States [and] local communities ... both along the border and in the interior of the United States”;
- “overwhelm[] the Departments’ ability to effectively process, detain, and remove, as appropriate, the migrants encountered”;
- “incentivize an increasing number of migrants to [come illegally to] the United States and further increase the likelihood of sustained high encounter rates”;
- “encourage migrants to make a dangerous journey to the SWB [southwest border]”;
- result in “those who have a valid claim to asylum ... hav[ing] to [maybe] wait years for their claims to be granted, while individuals who will ultimately be found ineligible for protection may [be able to] spend years in the United States before being ordered removed”; and
- “[not be] sufficient to address the current levels of migratory flows and the anticipated increase in the number of migrants who will attempt to enter the United States following the lifting of the Title 42 public health Order”.
All I can say to whomever was responsible for writing the woebegotten Mayorkas Plan is, as President Bush would say, “Heck of a job!” In all seriousness, it appears that Secretary Mayorkas, in addition to being almost neurotic (in his determination to imitate the empiric immigration enforcement failures of past administrations and ignore the empiric successes of the Trump administration), is suffering from cognitive dissonance. CD “occurs when a person holds two related but contradictory cognitions, or thoughts”.
As I have noted, a year ago Mayorkas testified that “We started our planning last September [2021], and we are leading the execution of a whole-of-government strategy, which stands on six pillars, to prepare for and manage the rise in noncitizen encounters [after Title 42 is lifted].” Two weeks ago, on April 27, DHS proclaimed that “In April 2022, Secretary Mayorkas issued the DHS Plan for Southwest Border Security and Preparedness, laying out a six-pillar plan to manage an increase in encounters once Title 42 is no longer in effect, and updated the plan in December 2022.” On the same day, Mayorkas himself touted “[t]he comprehensive plan we have developed and are executing”, saying that “[t]he work we have been performing to prepare for post Title 42 continues, as I have previously outlined in our six-pillar plan.”
Yet, to put in context the quotes I selected above, Secretary Mayorkas and AG Garland conclude in the CLAP that:
-
The Departments believe that th[e CLAP] is necessary to address the anticipated surge in irregular migration [that would occur under the six-pillar Mayorkas plan].
-
Absent policy changes [from the six-pillar Mayorkas plan], most non-Mexicans processed for expedited removal under Title 8 would likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum, a scenario that would likely incentivize an increasing number of migrants to the United States and further increase the likelihood of sustained high encounter rates.
-
At th[e expiration of our Title 42 authorities], the number of migrants seeking to cross the SWB without authorization is expected to increase significantly, unless other policy changes [beyond the six-pillar Mayorkas plan] are made.
-
Promulgation of th[e CLAP] is needed because, once the Title 42 public health Order is lifted, [relying on the six-pillar Mayorkas plan] the number of migrants traveling to the United States without authorization is expected to increase significantly, to a level that risks undermining the Departments’ ability to safely, effectively, and humanely enforce and administer U.S. immigration law, including the asylum system. Such a surge would also place additional pressure on States, local communities, and non-governmental organization ... partners both along the border and in the interior of the United States.
-
[The CLAP] responds to the expected increase of migrants seeking to cross the SWB following the termination of the Title 42 public health Order that would occur in the absence of a policy shift [away from the six-pillar Mayorkas plan] by encouraging reliance on lawful, safe, and orderly pathways, thereby shifting the incentives that otherwise encourage migrants to make a dangerous journey to the SWB.
-
[T]he circumstances likely to occur [in adhering to the six-pillar Mayorkas plan] include the following: an additional number of migrants anticipated to arrive at the border; the severe strain on resources that this influx of migrants would cause DHS; and a substantial resulting impact on U.S. Government operations, as well as local communities.
-
[T]he anticipated increase in the number of migrants following the lifting of the Title 42 public health [if we adhere to the six-pillar Mayorkas plan] threatens to exceed the Departments’ capacity to safely and humanely process migrants.
-
[We] anticipate that in the absence of th[e CLAP and adhering to the six-pillar Mayorkas plan], a significant further surge in irregular migration would ... occur. Such a surge would risk (1) overwhelming the Departments’ ability to effectively process, detain, and remove, as appropriate, the migrants encountered; and (2) placing additional pressure on States, local communities, and [nongovernmental organization] partners both along the border and in the interior of the United States.
-
[I]t is not feasible for the Departments to quickly hire sufficient qualified personnel or increase other resources to efficiently, effectively, and fairly handle the volume of encounters projected by May 2023 [under the six-pillar Mayorkas plan], when a further surge of migrants to the SWB is expected following the lifting of the Title 42 public health Order.
-
[T]he current level of migratory movements and the anticipated increase in the numbers of individuals seeking entry into the United States following the lifting of the Title 42 public health Order, without policy changes [from the six-pillar Mayorkas plan], threaten to exceed the capacity to maintain the safe and humane processing of noncitizens who cross the SWB without authorization.
-
[If we rely on the six-pillar Mayorkas plan,] those who have a valid claim to asylum may have to wait years for their claims to be granted, while individuals who will ultimately be found ineligible for protection may spend years in the United States before being ordered removed.
-
[We] do not believe that current laws and regulations [including the Mayorkas Plan] are sufficient to address the current levels of migratory flows and the anticipated increase in the number of migrants who will attempt to enter the United States following the lifting of the Title 42 public health Order... . Absent further action, POEs will be congested, migrants will be forced to wait in long lines for unknown periods of time, and once processed they will be released into local communities that are already at or near their capacity to absorb them.
-
A significant further increase in irregular migration ... with limited removal options, and coupled with DHS’s limited options for processing, detaining, or quickly removing such migrants [under the Mayorkas Plan], would unduly impede DHS’s ability to fulfill its critical and varied missions.
-
[T]hese levels of irregular migration risk overwhelming DHS’s ability to effectively process, detain, and remove, as appropriate, the migrants encountered. This, in turn, would result in potentially dangerous overcrowding at CBP facilities. The attendant risks to public safety, health, and welfare provide good cause to issue th[e CLAP] without delay.
Don’t just take Secretary Mayorkas’ word for it. Apparently, Leon Panetta, former secretary of defense under President Obama, is also worried, saying:
I’m not sure we’re ready for the consequences. When you remove Title 42, there’s going to be new challenges that are going to have to be faced head-on. ... At this stage of the game, I think the administration has had enough notice that they have got to be ready to handle whatever happens. They definitely are going to be tested in these next few weeks.
And even President Biden seems dissatisfied with the Mayorkas Plan, with the Washington Post and Fox News saying that he “reportedly exploded several times over what he believed were excuses from his team for inaction at the southern border.” What inaction? Why didn’t President Biden’s team tell him that Secretary Mayorkas took the very definite actions of repudiating the Mayorkas Plan and transmitting the CLAP?