The Biden administration’s proposed new asylum rule, “Circumvention of Lawful Pathways,” is an erroneously named gimmick on top of a shell game to cover up bad optics on surging illegal immigration.

The Left is wrong to complain about the rule, and the Right is wrong to praise it. President Joe Biden may be happy with those reactions as he prepares to announce his reelection campaign, but for everyone else, some explanation is sorely needed about the compounded mess his administration is creating.

For two years, the Biden administration has denied there was a border crisis despite monthly record numbers of illegal alien crossings at our southern border. However, when the December numbers hit yet another new high of nearly 252,000 encounters just between the ports of entry on the southern border, the administration tried a new tactic.

It wasn’t a long overdue enforcement effort, mind you. It’s a shell game.

In January, the Department of Homeland Security directed future illegal aliens to use the “CBP One” mobile app to make an appointment with Customs and Border Protection to be processed through a port of entry and paroled into the U.S., where they may or may not apply for asylum, but they can get work authorization and remain for two years.

Failure to do so might get you deported, Secretary of Homeland Security Alejandro Mayorkas warned would-be illegal migrants.

Message received, illegal aliens followed the secretary’s direction and shifted to the ports of entry. Before January was even over, DHS exclaimed, “Look! The encounters on the southwest border are down!” while citing only the Border Patrol encounters between the ports of entry.

The department didn’t cite the growing number of inadmissible aliens CBP has been encountering at the ports of entry. The administration labels this made-up visa-like program a “lawful pathway.” But labeling an unconstitutional program “lawful” does not make it, nor the aliens who use it, “legal.”

Now, in anticipation of even higher numbers of illegal alien encounters with the coming termination of the Title 42 public health authority used to expel migrants during the COVID-19 pandemic, the departments of  Homeland Security and Justice have proposed a joint rule to avoid more bad optics. In it, the departments “encourage” illegal aliens to “avail themselves of [the] lawful, safe, and orderly pathways” the Biden administration created, or “seek asylum or other protection in countries through which they travel.”

This sounds like the “third-country transit bar” rule that the Trump administration finalized in 2020 (but was preliminarily enjoined by the U.S. District Court for the Northern District of California), in which DHS and DOJ adopted a bar to asylum for those illegal aliens who failed to apply for protection while in a third country through which they transited en route to the U.S.

Proposing a rule that sounds like a Trump rule that the Left stopped in court has caused the Left to criticize Biden’s new rule, and some on the Right to react pleasantly surprised. But both sides need to read further into the 48-page proposed rule to recognize it is a gimmick.

The rule would create a rebuttable presumption that an illegal alien is ineligible for asylum in the U.S. if they traveled through a third country unless one of several exceptions apply: DHS gave the alien approval to travel to the U.S. to seek parole through a DHS-approved parole process; the alien presented at a port of entry after using the CBP mobile app to schedule their port appointment, or demonstrate that it was not possible to access the mobile app because the alien does not have a mobile phone, the CBP app was not functioning properly, or the alien is illiterate; the alien is an unaccompanied minor; or the alien sought asylum or other protection in a country through which the alien traveled and received a final decision denying the application.

In addition to those broad exceptions, an illegal alien would also rebut the asylum-ineligibility presumption if the alien or family member has an acute medical emergency, faced an imminent and extreme threat to life or safety, is a victim of a severe form of trafficking in persons, of has “other exceptionally compelling circumstances” that convince an asylum officer.

The rule specifies that a circumstance that would lead to the separation of a family meets the above “exceptionally compelling circumstance” exception.

Over the decades, exceptions in immigration law have been expanded and abused to overcome their underlying rules, but this proposed rule starts with the exceptions swallowing the rule whole.

Lost in this is the purpose of asylum and the sound principle that if someone is truly fleeing for their safety, they request protection in the first safe place in which they arrive.

The administration pays lip service to migrants seeking safety in other Western Hemisphere countries in the proposed rule by describing how several Central and South American countries have taken in migrants and expanded their respective asylum programs (many of which were developed with U.S. taxpayer funds). But DHS and DOJ direct future illegal aliens to bypass all of that by simply using their unconstitutional “lawful pathway” to make an appointment at a port of entry and get paroled in.

Worse, the proposed rule would only have the “safe third country” rebuttable presumption last for two years, at which point the presumption would sunset when the illegal border-encounter numbers are lower.

This Biden rule is nothing more than a blatant cover-up of bad optics on illegal immigration. It makes a mockery of asylum. It deserves many strong public comments filed in opposition and should be rescinded—if not by the administration, by Congress.  

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