New York Post, July 26, 2023
On Tuesday, Judge Jon Tigar vacated Homeland Security Secretary Alejandro Mayorkas’ Circumvention of Lawful Pathways (CLAP) rule, which professes to crack down on “asylum shoppers” who claim fear of persecution once they get to the United States but who notably fail to seek protection anywhere else along the way here.
The decision is no shocker.
Tigar is the same Obama-nominated federal judge who enjoined two separate versions of the Trump administration’s third-country-transit asylum-bar rule, from which the CLAP mutated.
Tigar’s opinion reads so much like the arguments made by the illegal-immigrant advocates who challenged CLAP that they should sue him for plagiarism.
Sad but true: The decision doesn’t change much for border security.
Mayorkas’ DHS had already gleefully turned the Trump rule into an impotent, loophole-filled “rebuttable presumption” of ineligibility, allowing DHS to exempt huge populations of foreigners Mayorkas wants to allow into the United States.
To understand CLAP, we need to go back to the Trump rule (which, in full disclosure, I worked on while at DHS’s Office of the General Counsel).
The Trump guidelines were designed to inhibit the ability of migrants to shop for their preferred country to seek asylum (America), both for their benefit and ours.
Many asylum shoppers, the rule noted, “are simply economic migrants seeking to exploit our overburdened immigration system by filing a meritless asylum claim.”
But any supposed “toughening” of asylum rules by the Biden administration was a farce. Under Mayorkas:
- Inadmissible aliens who show up at ports of entry pursuant to the CBPOne app scam? Exempt.
- Unaccompanied aliens purporting to be minors? Exempt.
- Aliens with “exceptionally compelling circumstances”? Exempt. And these “circumstances” will be determined by generally far-left asylum officers, one of whom called Trump’s third-country-transit asylum bar “a supervillain plan” that made him “feel horrified, even physically sickened.”
I do feel bad for the DHS and Justice Department lawyers who were given the hopeless task of convincing Tigar that CLAP was lawful after he had already decided the Trump rule was not.
After all, Human Rights Watch had condemned the CLAP as “unconscionable” and the ACLU said it was “Trump’s asylum ban under a different name.”
The lawyers based their half-hearted defense on all the exemptions stuffed into CLAP, as if they were saying, “Look, our rule is ineffectual, a farce, so that should make it lawful in the Ninth Circuit!”
But Tigar wasn’t buying it — “the record demonstrates that many asylum seekers will be unable to qualify for these exceptions.”
Tigar noted at the end of his opinion that he was “mindful that this is ‘a time of heightened irregular migration ... and that, in the absence of the [CLAP], DHS anticipates a return to elevated encounter levels that would place significant strain on DHS components, border communities, and interior cities.’”
Yet he still sided with the chaos contingent. The smugglers gassing up their death-trap trucks for more border incursions must be high-fiving each other.
Mayorkas “strongly disagreed” with Tigar’s ruling but insisted that it “does not limit our ability to deliver consequences for unlawful entry.”
And anyone who says otherwise is “believing the lies of smugglers”!
Honestly, the smugglers have been much more truthful about the pathological Biden border disorder than has been the Biden administration.
And why not? Biden’s policies have made them unimagined fortunes.
The New York Times reported last year that the smugglers’ revenues soared from $500 million in 2018 to $13 billion.