The Biden Administration received another defeat in court, with Judge Jon Tigar of the Northern District of California vacating the latest asylum rule. That asylum rule created an (easily) rebuttable presumption of asylum ineligibility for aliens who did not schedule their illegal entry beforehand using a phone app called CBP One. Along with the mass parole of aliens streaming across the border, it was a cornerstone of the Biden Administration’s goal of hiding the reality of the migrant crisis with scheduling and accounting tricks. In other words, the same people are coming in the same numbers, but it is okay now because they used a phone app to let DHS know when they would arrive and were waived in. For the communities struggling to deal with the surge in population, this is not helpful, but Biden can say the illegal crossings are down because they are counted in a different column on the spreadsheet.
This defeat arrives shortly after the Supreme Court handed Biden a rare legal victory in the Texas challenge of his enforcement priorities. There, Justice Kavanaugh wrote an opinion saying there was no standing for Texas to challenge enforcement priorities that defy statutory mandates and essentially make most aliens in the country illegally a non-priority for removal, as a matter of policy. After that victory, the Biden Administration used the hot-off-the-press precedent to try and dismiss the challenges to both the asylum rule and the illegal parole programs DHS has created.
Judge Tigar swiftly dismissed the applicability of the recent Supreme Court precedent to the asylum rule challenge. The Judge is clearly correct. The Supreme Court simply dismissed standing for the narrow Executive decision to refuse to enforce the law. The double standard is that when a President attempts to enforce the law, whether in good or bad faith (this asylum rule is the latter), the standard for judicial standing is more lenient. With the asylum rule vacated, perhaps President Biden could just refuse to enforce asylum law at all and grant no asylum to call Justice Kavanaugh’s bluff.
But I digress. Judge Tigar made the point that the asylum rule was not a refusal to enforce the law, but instead actually modifying eligibility for asylum benefits. A silver lining here is that the same sort of logic will doom the President’s attempt to dismiss the legal challenges to the parole program. This is critical because the President has used illegal parole programs to allow in over half a million illegal aliens.
Usually, when President Biden loses in court on immigration issues, it is cause for celebration. Here, it is a mixed bag. On the one hand, the asylum rule essentially stands for allowing aliens with frivolous asylum claims to come to the United States as long as they schedule an appointment. It is a terrible policy. On the other hand, if a weak asylum rule with only minimal restrictions is found to be in violation of asylum law, then any real, common sense restrictions are doomed to fail.
Even with exceptions big enough to drive a truck convoy through, and even though the rule simply made aliens use a mobile phone app and arrive at ports of entry, Judge Tigar has found this too restrictive. According to Judge Tigar, the asylum law must allow eligibility for all aliens who come across the border at their time and place of choosing. Anything else is essentially illegal under current law. This makes it clear for any current candidates for President that the regulatory process is not going to effectively alter the asylum loopholes that are plaguing our border. The House of Representatives, by passing HR 2, has made clear that asylum must not be available on demand in between ports of entry. If the Senate refuses to act, a future president would have to use 8 U.S.C. 1182(f) to bar entry across the border or use Remain in Mexico policies like the Migrant Protection Protocols (MPP).
Of course, President Biden dismantled MPP and certainly will not use 1182(f) to bar entry. His list of policies have shown a steadfast dedication to expanding the number of illegal entries at the border. The only real question is what open-borders policy he will turn to if both his asylum and parole policies fall. It is certainly clear that the parole policies are procedurally invalid. Unlike the asylum rule that was vacated by Judge Tigar, the parole programs were created without the notice and comment required by the Administrative Procedures Act (APA). That fact alone is sufficient to doom the programs. The concern is what open-borders zealots will do next after the meager asylum changes and mass parole fail legal challenges. One possibility is abuse of the Temporary Protected Status (TPS) program. TPS provides work authorization and bars removal of aliens. If parole for specific countries fails, look for President Biden to consider using and expanding TPS for those same countries.
JARED CULVER is a Legal Analyst for NumbersUSA
