"Circumvention of Lawful Pathways" or Circumvention of the Law?

• Citation: Vol. 6 No. 1
• Publication year: 2024

"Circumvention of Lawful Pathways" or Circumvention of the Law?

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A Comparison Across Party Lines

Jenna Ebersbacher ^*

Abstract: Lately, it seems technology has infiltrated every aspect of our lives— including our laws. Nearly a year ago, the Biden administration promulgated its own unique version of the asylum ban titled "Circumvention of Lawful Pathways." Asylum seekers are now forced to utilize the CPB One smartphone application to schedule an appointment to seek asylum. However, multiple lawsuits threaten the rule from pro-immigrant and anti-immigrant advocates alike. This article examines this rule and the legal challenges that could lead to its demise.

Introduction

On May 16, 2023, the Biden administration published the rule titled "Circumvention of Lawful Pathways" (the Rule), which purports to encourage migrants to "lawfully" present themselves at ports of entry (POE) in order to seek asylum. ¹ An aspect of this rule creates barriers to entry for migrants by requiring them to use a phone application—CBP One—to make an appointment for entry. ² Ostensibly, the administration intends for this requirement to smooth the process for Customs and Border Protection (CBP) and migrants themselves; however, the Rule creates a ground of ineligibility for asylum seekers who either do not know about the CBP One requirement or do not have the means of owning and operating a smartphone capable of downloading the CBP One application. ³

"Circumvention of Lawful Pathways" is an ambiguous title left with further complexing implications. Despite the end of expelling asylum seekers under Title 42, the Biden administration has found a way to carry on its legacy under the guise of "lawful, safe, and orderly pathways" under its final rule effective May 11, 2023. ⁴ This Rule has created opposition on both sides of the aisle. Immigrant advocates are bringing a class action suit against the government in AOL et al. v. Mayorkas, arguing that this Rule unjustly turns away asylum seekers who are otherwise eligible under the law. ⁵ Meanwhile, Texas Attorney General Ken Paxton filed a lawsuit against Secretary of Homeland Security Alejandro Mayorkas and Attorney General Merrick Garland arguing the opposite in State ofTexas v. Mayorkas et al., stating that this Rule allows individuals, who would otherwise be ineligible, to lawfully enter the country. ⁶ Who will

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prevail, and more importantly, where does the fate of asylum seekers at the southern border go from here?

This paper will examine the authority of the Department of Homeland Security (DHS) and the Department of Justice in implementing CBP One and whether it can hold up against attacks from all angles. The Immigration and Nationality Act (INA) states, "The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum . . ." ⁷ However, the Biden administration took this a step too far by creating a rebuttable presumption of owning a smartphone. Technology should be implemented as a tool to facilitate access to our rapidly changing immigration system, not a barrier. However, this Rule instead necessitates technology as a factor in legal determinations and their resulting consequences. Adding to the analysis, this paper will consider the merits of the challenges brought from both sides of the argument, as well as what the future holds for asylum seekers if this rule is upheld or if it is enjoined. Do we return to a pre—Title 42 era of asylum law? Or will the courts allow the government to further chip away at our asylum laws? Although the administration may have had the best of intentions when implementing this Rule, this paper will examine why its effects could be disastrous for both those attempting to administer it and the migrants to whom it will apply.

The Rule

The final rule, "Circumvention of Lawful Pathways," among other things, establishes a rebuttable presumption of ineligibility for asylum for non-Mexican noncitizens who present themselves at a POE at the southwest border or adjacent coastal borders without legal documentation and without a previously scheduled appointment, after traveling through a third country where they did not apply for and were not denied asylum. ⁸ Sounds familiar, right? The rule went into effect the same day as Title 42's expiration, May 11, 2023, and is currently set to end on May 11, 2025. ⁹

For simplicity, the Rule can be broken down as follows: Non-Mexican noncitizens who cross the southern border or adjacent land borders (1) without authorization and (2) after traveling through another country will have a rebuttable presumption of ineligibility for asylum unless they have done one of the following:

1. availed themselves of an existing lawful process,
2. presented at a POE at a pre-scheduled time using the CBP One app, or
3. been denied asylum in a third country through which they traveled. ¹⁰

Ignoring, for a moment, the mirroring features of the Rule to those of the Trump era's Title 42, one additional aspect of the Rule adds a wrinkle of

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complexity not found in the previous Title 42 formulation: Non-Mexican asylum seekers who have not applied for and been denied asylum in a third country may still avoid the rebuttable presumption of ineligibility for asylum if they present at a POE at a pre-scheduled time. ¹¹ They must, however, use the CPB One phone app to pre-schedule their appointment. ¹²

Nevertheless, there are some ways to rebut the presumption of ineligibility for asylum. As an initial matter, there is a general catchall for "exceptionally compelling circumstances." ¹³ The DHS has said that, specifically, exceptionally compelling circumstances exist for a noncitizen who demonstrates that at the time of their unauthorized entry, they, or their family member (with whom they travelled):

1. faced an acute medical emergency;
2. faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or
3. were a victim of a severe form of trafficking, as defined in 8 CFR § 214.11. ¹⁴

Immigration advocates would make the argument that with the Trump era Title 42's expiration looming, many Americans anticipated a large surge of migrants at the southern border, leaving the Biden administration to be a defendant in the court of public opinion. The addition of the pre-scheduled appointment exception, while on its face seems like a benefit to asylum seekers to lessen the burden required by Title 42, actually fails to be useful to a large percentage of those seeking to use it. Among the migrants at the Southern border, a majority are seeking asylum after fleeing their home countries. Unfortunately, the vulnerability of these individuals turned out to be the solution to Biden's border problem. How could the government slow down the anticipated influx? Make it a requirement that a specific population that largely consists of individuals fleeing their homes and leaving everything behind have access to a smartphone with enough power and service to download a phone application; that is, if they are lucky enough to be the first to log on and secure one of the limited appointments. ¹⁵

While immigration advocates make the argument that the benefit that the Biden administration is presenting to asylum seekers to "avail themselves of lawful, safe, and orderly pathways" is actually a detriment to the process of asylum, the argument on the anti-immigration side of the aisle is slightly less empathetic—CBP One is an undocumented noncitizen's first-class ticket to live in the United States, and it must be stopped. ¹⁶ In other words: "The Biden Administration deliberately conceived of this phone app with the goal of illegally pre-approving more foreign aliens to enter the country and go where they please once they arrive," as Texas Attorney General Paxton argued in a press release. ¹⁷ The logic of this opposition to the rule is that whereas Title 42 barred all asylum seekers who did not first seek and get denied asylum in a third country before presenting themselves at the U.S. border to seek asylum,

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the Rule here allows those candidates for asylum to still have eligibility if they do not follow that formulation, as long as they pre-schedule their border appointment. ¹⁸ Either way, neither side is happy.

The Biden administration's logic, as expressed in the DHS Fact Sheet, is that this new Rule will create an orderly and manageable asylum process at the border in the face of a projected influx of asylum seekers at the end of Title 42. It argues that it puts "in place a mechanism for migrants to schedule a time and place to arrive in a safe, orderly and lawful manner at ports of entry via use of the CBP One mobile app; and expand[s] refugee processing in the Western Hemisphere." ¹⁹ However, the function of the application has fallen overwhelmingly short of being "safe" or "orderly" since its implementation in May. ²⁰ The administration further argues that this Rule will reduce the immigration court backlog; however, individuals who are deemed ineligible under the Rule will still have the ability to seek review of the decision by an immigration judge, meaning immigration courts must hear these cases, as well as the cases of those who are paroled into the United States to seek asylum, arguably doubling the backlog. ²¹

Jurisdiction or Not?

In the final rule jointly issued by the Attorney General and Secretary of the DHS, it points to two sources of authority to implement such a regula-tion. ²² The majority of both offices' concurrent powers are derived from the Homeland Security Act of 2002 (HSA) and the INA. ²³ The INA grants the Secretary the authority to establish regulations and take other actions "necessary for carrying out" the duties ascribed to him under Sections 1103(a)(1) and (3) of the INA. ²⁴ Meanwhile, the Attorney General "shall establish such...