On February 23, the Departments of Homeland Security and Justice published a proposed rule titled “Circumvention of Lawful Pathways” — let’s say “CLAP” for short. This regulation has been portrayed by advocacy groups as an inglorious and surprising return to Trump-era immigration restrictions by the Biden administration. For instance, Human Rights Watch proclaims that:
US President Biden has once again turned to ineffective and deadly deterrence policies .., proposing a rule ... that rights groups have labeled an “asylum ban” due to its unconscionable narrowing of access to protection. ... Biden’s new rule [includes] a version of former President Donald Trump’s “third country transit ban” — a policy Biden once campaigned against.
And the ACLU trumpets:
[The rule] will unlawfully deny asylum to people at the southern border [and] … force people to seek asylum and wait for an answer in Mexico or another country they passed through, unless they are granted a date and time to apply [at a port-of-entry]. ... The rule mimics illegal Trump asylum bans that were halted by the courts after ACLU lawsuits.
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Anu Joshi, deputy director of [our] National Political Advocacy Department [states that] “This asylum ban is, at its core, Trump’s asylum ban under a different name. It will leave the most vulnerable people in much the same position as Trump’s policy did — at risk and unfairly denied the protection of asylum for reasons that have nothing to do with their need for refuge. We can’t overstate the human suffering that will result.”
I don’t think that these groups are gaslighting per se, I just think they live in an alternate reality. As my colleague Elizabeth Jacobs concludes, the CLAP rule is “so fraught with exceptions and loopholes that the general public should expect few prospective migrants to actually be deterred”. The late, great Trump administration regulation (which, in full disclosure, I worked on as a deputy general counsel at DHS) would actually have helped curtail the border crisis (had it not been wrongly enjoined by a federal court). The current regulation, rather, is designed to simply further President Biden’s stratagem of, as I have written: “conscript[ing] parole to fulfill his agenda of, as Mark Krikorian, the Center for Immigration Studies’ executive director, has observed, stigma removal, the conversion of as much of the population of illegally entering economic migrants as it can into people supposedly fleeing persecution or violence or harm of one sort or another”. As a result, as I wrote, “[t]his could justify (at least in the administration’s own mind) the abandonment of any semblance of immigration law enforcement as a goal, replaced with, in DHS Secretary Mayorkas’ words, ‘safe, orderly, humane, and lawful pathways for migration’”.
To understand the new regulation, let’s turn back to the Trump regulation, which would have barred aliens from asylum eligibility if they crossed the southern border without having applied for protection from persecution or torture in at least one third country through which they transited en route here, unless an alien could (1) demonstrate that they applied for protection in at least one of the countries through which they transited and received a final judgment denying such protection; (2) demonstrate that they were a victim of a severe form of human trafficking; or (3) had transited only through a country/countries not parties to the 1951 Refugee Convention or the 1967 Refugee Protocol.
As the Trump administration’s rationale, DHS and DOJ explained that:
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The United States has experienced an overwhelming surge in the number of non-Mexican aliens crossing the southern border and seeking asylum.
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[T]he rule seeks to curtail the humanitarian crisis created by human smugglers bringing men, women, and children across the southern border. By reducing the incentive for aliens without an urgent or genuine need for asylum to cross the border — in the hope of a lengthy asylum process that will enable them to remain in the United States for years, typically free from detention and with work authorization, ... the rule aims to reduce human smuggling and its tragic effects.
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[This] rule would ensure that the ever-growing influx of meritless asylum claims do not further overwhelm the country’s immigration system, would promote the humanitarian purposes of asylum by speeding relief to those who need it most ... i.e., individuals who have no alternative country where they can escape persecution or torture.
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[T]he long and arduous [illicit] journey ... to the United States brings with it a great risk of harm that could be relieved if individuals were to more readily avail themselves of legal protection from persecution in a third country closer to the[ir] country of origin.
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An alien’s decision not to apply for protection at the first available opportunity, and instead wait for the more preferred destination of the United States, raises questions about the validity and urgency of the alien’s claim.
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[I]t is reasonable to question whether the aliens genuinely fear persecution or torture, or are simply economic migrants seeking to exploit our overburdened immigration system by filing a meritless asylum claim as a way of entering, remaining, and legally obtaining employment in the United States.
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The ... rule ... is in keeping with the efforts of other liberal democracies to prevent forum-shopping by directing asylum-seekers to present their claims in the first safe country in which they arrive. ... [T]he [European Union’s] Dublin III Regulation ... instructs that asylum claims “shall be examined by a single Member State.” ... Typically ... the member state by which the asylum applicant first entered the EU “shall be responsible for examining the application for international protection.” ... [and other member states] may transfer the asylum-seeker back to the state of first safe entry.
Well, what about the CLAP? It converts the Trump administration’s bar to asylum eligibility into a “rebuttable presumption” of ineligibility, thereby allowing the Biden administration to exempt huge segments of the population of aliens who would choose to enter the U.S. illegally. How did we get the CLAP’s exceptions and loopholes? I would surmise that the rules’ drafters were told to add them in a deliberate attempt to achieve the result that Jacobs foresees — to make the CLAP impotent, a Potemkin village of feigned immigration enforcement.
First, the CLAP states that the presumption will “not be applicable to [aliens] who are provided appropriate authorization to travel to the United States to seek parole, pursuant to a DHS-approved parole process”. Ah, so it is designed not to impede President Biden’s ongoing weaponization of parole. This exemption will ensure that the many tens or hundreds of thousands or more of otherwise illegal aliens who President Biden wants to escort into the U.S. under parole need not worry about having to apply for asylum at the first availability.
Second, the CLAP states that its presumption will not be applicable to aliens who “present[] at a port of entry at a pre-scheduled time and place, or present[] at a port of entry, without a pre-scheduled time and place, if ... demonstrate[ing] that the DHS scheduling system ... was not possible for the noncitizen to access or use”. Thus, the CLAP will essentially exempt from the presumption any inadmissible alien who shows up at a port of entry. Assuming they are placed into expedited removal proceedings, they can all claim a fear of return, most likely be found to have a credible fear of persecution, be freed from detention, and released into the U.S. with work authorization to boot. Again, they won’t have to worry about applying for asylum at the first opportunity, rather, they can shop for their best asylum “deal”. As the CLAP itself explains:
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Once present in the United States, those who enter through this mechanism would be able to make claims for asylum and other forms of protection ... [and] assuming no public safety or national security concerns, would be eligible to apply for employment authorization after crossing the border as they await resolution of their cases.
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Under current employment authorization regulations, there is no waiting period before a noncitizen parolee in this circumstance may apply for employment authorization.
Third, the rule states that the presumption is not applicable to unaccompanied alien children [“UAC”], unlike the Trump-era rule, which did not exempt UACs. In fiscal year 2022, CBP officers encountered 152,067 UACs, over 6 percent of all encounters, and in 2019 and 2022, UAC encounters were in the 10 percent range of all encounters. As the Trump administration’s rule explained:
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[T]his rule may encourage ... UAC to avoid making a long, arduous, and extremely dangerous journey that brings with it a great risk of harm that could be avoided if they were to more readily avail themselves of legal protection from persecution or torture in a third country closer to the ... child’s country of origin.
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UAC have the opportunity to apply for protection in multiple countries prior to their arrival in the United States. [A] UAC who is old enough to travel independently across hundreds or thousands of miles to the United States can logically also be expected to seek refuge in one of the countries transited if the UAC is genuinely seeking protection. A UAC who is not old enough to travel independently necessarily must travel with an adult, and again, there is no reason that an adult cannot apply for protection in any country offering refuge if the adult and the UAC are genuinely seeking protection.
Finally, the CLAP’s rebuttable presumption makes no sense. Rebuttable presumptions are not unknown in immigration law. For instance, in evaluating the testimony of an asylum applicant (and any witnesses for the alien), an immigration judge is supposed to determine “whether or not the testimony is credible”. If the judge does not make an explicit credibility determination, “the applicant or witness shall have a rebuttable presumption of credibility on appeal”. But as to CLAP, how would one rebut the presumption? The regulation explains:
This presumption could be rebutted, and would necessarily be rebutted if, at the time of entry, the [alien] or a member of the [alien’s] family had an acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of “victim of a severe form of trafficking in persons”. ... The presumption also would be rebutted in other exceptionally compelling circumstances, as the adjudicators may determine in the sound exercise of the judgment permitted to them under the proposed rule.
Wait a second, these factors have nothing to do with asylum eligibility!
The INA provides that to be eligible for asylum, an alien must be “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [a] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”. Now, an acute medical emergency is a perfectly appropriate rationale for a grant of parole. As the House Judiciary Committee stated in 1952, parole may be proper in “emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him”. But medical emergencies have absolutely nothing to do with persecution.
And an “imminent and extreme threat to life or safety” is only a valid asylum consideration to the extent it is a result of persecution an account of one or more of the five grounds. If it isn’t, it has nothing to do with asylum or persecution, except in one narrow circumstance:
[A]n immigration judge ... shall deny the asylum application of an alien found to [meet the definition of a] refugee on the basis of past persecution if ... [t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution ... or ... [t]he applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality ... and ... it would be reasonable to expect the applicant to do so. ... [However, the applicant] may be granted asylum [if not subject to a mandatory bar to asylum and] ... [t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or ... has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal.
These factors of the Biden regulation simply have nothing to do with the ineligibility for asylum that they are supposedly rebutting. Putting this inexplicable drafting aside, the exceptions to the presumption for an “imminent and extreme threat to life or safety”, or for “other exceptionally compelling circumstances, as the adjudicators may determine” will be put in the hands of generally far-left asylum officers. As I have written:
[A]sylum officers (and their supervisors) by and large believe that the actions taken by the Trump administration to remedy the southern border crisis were misguided if not actually malevolent. One officer called the [Migrant Protection Protocols] MPP and the rule that barred aliens from asylum eligibility who had failed to seek asylum in countries through which they had traveled en route to the U.S. “a supervillain plan” that made him “feel[] horrified, even physically sickened”. The Los Angeles Times reported that an asylum officer quit after deciding that he “wasn’t going to implement President Trump’s latest policy to restrict immigration. ... ‘They’re definitely immoral ... [a]nd I’m not doing them,’” he told his supervisor in (of course) San Francisco.
One can only imagine what such asylum officers will determine to be “imminent and extreme threats” and “compelling circumstances” if necessary in their minds to countermand the “cruel” CLAP rule and allow aliens to be paroled onto our streets and apply for asylum. After all, a union local representing about 700 asylum and refugee officers proclaimed a few years ago in an amicus brief to the 9th Circuit that “If migrants entering the United States through our Southern Border are given the protections that our system typically affords to those fleeing persecution, most would be able to establish that they are likely to face persecution in Mexico if forced to stay there.” Yes, asylum officers apparently believe that most aliens illegally crossing our southern border should qualify for asylum from Mexico!
In conclusion, DHS and DOJ do not need the CLAP in order to prevent a border super-crisis at the conclusion of the use of Title 42 authorities. They need truly effective tools, such as, yes, the Trump regulation, or, as I have written, authorization to go full throttle on the MPP.