On Tuesday, Judge Jon Tigar invalidated Homeland Security Secretary Alejandro Mayorkas’ Circumvention of Lawful Pathways (CLAP) rule, which aims to crack down on individuals who claim fear of persecution upon arriving in the United States but fail to seek protection elsewhere along their journey. This outcome was somewhat expected, as Tigar is the same federal judge appointed by Obama who halted two iterations of the Trump administration’s asylum-bar rule related to third-country transit. Tigar’s opinion closely mirrors arguments made by advocates for illegal immigrants, to the extent that they could potentially sue him for plagiarism. Unfortunately, this ruling does not have a significant impact on border security. Mayorkas’ DHS had already weakened the Trump rule, turning it into a toothless “rebuttable presumption” of ineligibility that contains multiple loopholes. This allows DHS to exempt large groups of foreigners that Mayorkas wants to admit into the country. To understand the CLAP rule, it’s important to revisit the Trump guidelines. These guidelines were designed to deter migrants from selectively choosing the United States as their preferred asylum destination, for the benefit of both the migrants and the country. The rule recognized that many asylum seekers were simply economic migrants exploiting the strained immigration system by filing baseless claims. However, the so-called “toughening” of asylum rules by the Biden administration was nothing more than a facade. Under Mayorkas, inadmissible aliens using the CBPOne app scam to enter through ports of entry are exempt from the rule. Unaccompanied aliens posing as minors are also exempt, as are aliens with “exceptionally compelling circumstances.” Additionally, these “circumstances” are evaluated by asylum officers with generally left-leaning views, one of whom referred to the Trump rule as a “supervillain plan” that made him feel disgusted. It is unfortunate for the attorneys from the DHS and Justice Department that they were tasked with convincing Judge Tigar that the CLAP rule was lawful, especially after he had already deemed the Trump rule unlawful. Human Rights Watch condemned the CLAP as “unconscionable,” and the ACLU argued that it was essentially the same as Trump’s asylum ban under a different name. The lawyers weakly defended the rule by highlighting the many exemptions it contained, essentially admitting that it was ineffective and a farce, hoping that these qualities would somehow make it legal in the Ninth Circuit. However, Judge Tigar was not convinced, stating that “many asylum seekers will be unable to qualify for these exceptions.” At the end of his opinion, Tigar acknowledged the challenges posed by irregular migration and the strain it places on DHS components, border communities, and interior cities in the absence of the CLAP rule. Yet, he still sided with the chaos faction. Smugglers must be celebrating, as this ruling allows them to continue their dangerous border incursions. Mayorkas strongly disagrees with Tigar’s decision but maintains that it does not limit their ability to deliver consequences for unlawful entry. Anyone who claims otherwise is merely believing the lies perpetuated by smugglers. In all honesty, the smugglers have been more truthful about the disorder at the Biden border than the Biden administration itself. After all, Biden’s policies have allowed smugglers to amass unprecedented fortunes. According to The New York Times, smugglers’ revenues skyrocketed from $500 million in 2018 to $13 billion. George Fishman, a senior legal fellow at the Center for Immigration Studies, provides these insights.
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