Last April 26, DHS Secretary Alejandro Mayorkas signed a self-congratulatory memo for “Interested Parties” setting forth DHS’s “Plan for Southwest Border Security and Preparedness”, proclaiming that despite “inheriting a broken and dismantled immigration system ... DHS has effectively managed an unprecedented number of noncitizens seeking to enter the United States.”
Two thoughts. First, it is incontrovertible that Secretary Mayorkas’ DHS has certainly proven effective in managing to release an unprecedented number of illegal aliens into the United States. Second, what President Biden and Secretary Mayorkas inherited was quite different than what Secretary Mayorkas presupposes. As I have written:
What President Biden inherited was priceless — the Trump administration put in place mechanisms that had actually brought the border under control (even before Title 42), such as the Migrant Protection Protocols (MPP). DHS found the MPP to be “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system” ... noting “a connection between MPP implementation and ... a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP.”
All President Biden had to do was keep things on autopilot. Instead, he handed the controls to anti-border zealots and sought to terminate the MPP. As my colleague Andrew Arthur has ... written:
Joe Biden inherited what his first Border Patrol chief, Rodney Scott, described in a September 2021 letter to Senate leadership as “arguably the most effective border security in” U.S. history. Scott complained, however, that Biden quickly allowed things at the border to “disintegrate” as “inexperienced political appointees” ignored “common sense border security recommendations from experienced career professionals”.
The same month that Chief Scott issued his plea to the Senate, Secretary Mayorkas assured the Senate Homeland Security and Government Affairs Committee that:
The Biden-Harris Administration is committed to stemming the flow of irregular migration. ... While [our] efforts will dramatically improve migration management in the region and help restore safe and orderly processing at the border, they will take time.
In any event, in his “Plan for Southwest Border Security and Preparedness”, Secretary Mayorkas noted that:
Beginning in September 2021, DHS began planning in anticipation of the eventual lifting of Title 42. [All emphases added.]
DHS is leading the execution of a whole-of-government plan to prepare for and manage increased encounters of noncitizens at our Southwest Border. Many elements of this plan are already being implemented. ... Others are elements that we are prepared to implement once the Title 42 termination goes into effect.
[W]e have been able to manage increased encounters because of prudent planning and execution.
Building on lessons learned and in preparation for the termination of CDC’s Title 42 public health Order, DHS commenced planning exercises in Fall 2021. In February 2022, DHS formally launched the Southwest Border Coordination Center (SBCC), which is coordinating a whole-of-government response to the anticipated increase in border encounters. I designated a Senior Coordinating Official ... to oversee the SBCC, who reports directly to me.
This comprehensive plan leverages a whole-of-government approach to prepare for and manage the current and anticipated increases in encounters of noncitizens at our Southwest Border.
DHS has undertaken a deliberate and methodical approach to readiness prior to and for [the termination of the Title 42 Order]. Following months of planning based on multiple potential scenarios, we are pre-positioning and expanding available resources. We are also conducting extensive testing of processes that have not been used at scale since the implementation of Title 42 and new approaches.
The preparations and deliberate planning detailed in this memorandum will enable us to manage and mitigate known and unanticipated challenges more effectively, while protecting the safety and security of our communities.
At a House Appropriations Committee hearing the following day, Secretary Mayorkas testified that:
We started our planning last September, and we are leading the execution of a whole-of-government strategy ... to prepare for and manage the rise in non-citizen encounters.
[W]e have effectively managed an unprecedented number of non-citizens seeking to enter the United States [There’s that self-congratulation again] . ... A significant increase in migrant encounters will strain our system even further and we will address this challenge successfully. But it will take time.
We are mindful that there can be an increase in migratory flows encountered at our southern border should Title 42 come to an end. ... Our responsibility, therefore, is to prepare and plan for that eventuality. We have been mindful of the fact that the Title 42 authority would not be in place forever and, therefore, we began our extensive planning and preparation since September of last year. ... That is what we do; we plan, we prepare, and we execute in the service of our mission.
We have developed an integrated and scalable plan to activate and mobilize resources, increase processing and holding capacity while improving efficiency.
It is our responsibility to plan and prepare for eventualities that might materialize. We started to plan and prepare for the end of Title 42 commencing in September of last year, in September of 2021. We have been preparing every single day since then. Yesterday, I published a memorandum that set forth the ... six pillars that undergird our planning and preparation, so that everyone can understand the extent of the planning and preparation that we have undertaken. [Yes, I understand that the secretary works hard.]
The Biden administration assured the public not to worry, that the Mayorkas plan would solve the border crisis — “senior administration officials said” that it "details those efforts to ensure that we have an orderly, secure and well-managed border while continuing to treat people fairly and humanely” (emphasis added) and that “DHS has been ‘actively’ planning for the end of Title 42 ever since it was issued two years ago.” The plan was generally accepted without question by the mainstream media. For instance, Axios concluded that “This plan is exactly what lawmakers criticizing the administration’s plans to end Title 42 have been asking for.”
Last November, Secretary Mayorkas assured Sen. Sinema during a hearing of the Senate Committee on Homeland Security and Government Affairs that “We do, we do have a plan.” In December, DHS released a self-congratulatory (notice a pattern?) “Update on Southwest Border Security and Preparedness Ahead of Court-Ordered Lifting of Title 42” that stated that “since January 2021 DHS has effectively managed an unprecedented number of noncitizens seeking to enter the United States”. And Secretary Mayorkas stated that:
Since the launch of the [SBCC] in February, DHS has led a whole-of-government plan to prepare for and manage increased encounters of noncitizens at our southwest border. Thanks to prudent planning and execution, and the talent and unwavering dedication of the DHS workforce and our partners, we have maintained safe, orderly, and humane processes ... while ensuring national security and public safety.
Fast forward to this year. In January, President Biden introduced the secretary with the words “Mayorkas is waiting to impress you all”. The president quickly added “all kidding aside” (queue nervous laughter). Secretary Mayorkas then stated that:
Our approach to managing increased encounters and preparing for the lifting of the Title 42 order was outlined in our Southwest Border Security and Preparedness Framework issued in April and updated in December.
What we are doing is building on all the work that we have done since September of 21 to be prepared for the end of Title 42.
So, everything is going according to plan (for Southwest Border Security and Preparedness). Don’t worry, be happy. Secretary Mayorkas is working really hard. He and DHS have been preparing for a year and a half, in fact preparing every single day, as it is his responsibility and DHS’s responsibility to prepare and to plan. That’s what they do: plan and prepare. And all that preparing and planning will enable DHS to “manage and mitigate known and unanticipated challenges more effectively, while protecting the safety and security of our communities”.
Thus, it came as a considerable shock to my system to read in the Federal Register that DHS and the Department of Justice now conclude that:
[T]he Departments considered maintaining the status quo, consistent with the [Mayorkas] plan [for Southwest Border Security and Preparedness] in place when CDC issued its now-enjoined Title 42 termination Order in April 2022. ... That plan ... has been continually refined since it was introduced and continues to be in place.
[The plan] remains an important part of DHS’s response to the expected surge in migration following the lifting of the Title 42 public health Order. However, the numbers of migrants have increased, and demographics of encounters have shifted over the past nine months. ... As a result, the Departments have concluded that this plan alone would not be sufficient to shift incentives, and thus migratory flows, in a way that would ensure the safe, humane, and orderly processing of migrants. ... DHS Office of Immigration Statistics projects that encounters could average 11,000–13,000 per day after the lifting of the Title 42 public health Order, absent additional policy changes. These encounters ... are best addressed through the application of immediate consequences for unlawful entry, alongside the provision of lawful pathways, such as the CBP One app and the recently announced parole processes. The Departments emphasize, however, that the incentive structure created by such processes relies on the availability of an immediate consequence, such as the application of expedited removal under this NPRM, for those who do not have a valid protection claim or lawful basis to stay in the United States. ... Absent material changes in policy, the United States would likely see a significant and challenging increase in migrants taking a dangerous journey towards the border.
For these reasons, DHS has concluded that maintaining the status quo is not a reasonable option and that a policy shift consistent with what is provided for in the proposed rule is needed to serve key foreign policy goals and address the expected flows.
The Plan for Southwest Border Security and Preparedness “is not a reasonable option”?! The plan would lead to “a significant and challenging increase in migrants taking a dangerous journey towards the border”?! And these conclusions were reached by ... Secretary Mayorkas himself! At least he (and Attorney General Merrick Garland) signed them.
Secretary Mayorkas and Attorney General Garland made these conclusions to justify their new Circumvention of Lawful Pathways (CLAP) proposed regulation.
Now, as my colleague Elizabeth Jacobs concludes, the CLAP that Secretary Mayorkas is giving us is “so fraught with exceptions and loopholes that the general public should expect few prospective migrants to actually be deterred”. And, as I have written:
[The CLAP] 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.
Putting aside the CLAP’s ineffectualness, the fact that Mayorkas and Garland even felt a need to promulgate the proposed rule is indicative that it is a CYA maneuver in anticipation of the coming border mega-crisis. Secretary Mayorkas stated in December that “[t]he Biden-Harris Administration is committed to pursuing every avenue within our authority to secure our borders, enforce our laws, and stay true to our values as we build safe, orderly, and humane processes.” If only that were true, instead of publishing puerile plans and proposed regulations, Secretary Mayorkas would be reestablishing the MPP and fighting in court for the Trump administration’s third-country transit bar to asylum eligibility.