A 30-minute read. 

Introduction

I don’t blog nearly as often as I’d like, partly because I now sometimes write for other outlets, like the Center for Immigration Studies (CIS) and the Institute for Sound Public Policy, and regularly participate in or listen to Spaces about immigration on X (formerly Twitter). But, my irregular writing here is and has primarily always been due to having lousy time management skills, my audience being small (Ed. please don’t take it personally if you’re one of those people; it’s actually a complement to both of us you’re here), and my posts being long. That said, before the holidays, I did, as an unwanted protégé, receive a compliment from my would-be mentor—he knows who he is, and if you’re reading this, you probably do too—about my writing and encouragement to keep doing it despite the narrowness of the niche. Finally, most of my entries have been reactionary. Something involving or relating to immigration happens; people argue about it on X ad nauseam, and then I end up writing about it because many of those people don’t know what they’re talking about. This occasion is a bit different in that many who know what they’re talking about are being intentionally deceptive to argue their point in bad faith.

History Repeats

“Those who cannot remember the past,” Spanish philosopher George Santayana once wrote (Ed. Santayana is sometimes referred to as being “Spanish-American.” Still, there’s no evidence I’ve seen he ever became American despite the much simpler pre-1900s requirements and process to do so, and this is an immigration-related blog, so that distinction seems relevant.), “are condemned to repeat it,” and when it comes to immigration, that adage holds at least equally true as anything in life.

What’s driving the current discussion is a subsection of the Immigration and Nationality Act (the INA) codified as 8 U.S.C. § 1182, Inadmissible aliens. While subsection (a) outlines the types of aliens, successive Congresses thought were detrimental enough to the American way of life that they took to legislating them as not being eligible for admission into the United States, including reasons ranging from the mundane like coming to work without a Labor Certificate, designated (a)(5) to the obscure, like having been a Nazi, (a)(10)(E). In all seriousness, if you can think of a reason why an alien shouldn’t be allowed into the U.S., it’s probably there. 

I suggest that history repeats because the law I’m talking about, subsection (f) of 8 U.S.C. § 1182, INA § 212(f) or just § 212(f) for short, which has been on the books since 1952 but became about as much of a household “name” as an immigration law could during the Trump Administration because of the various travel bans aka the “Muslim Ban” that didn’t target all Muslims, or by the third attempt, even Muslims exclusively, despite having been used almost four dozen times before Donald Trump had even been inaugurated, 19 of them, by his immediate predecessor, Barack Obama. The exact pre-Trump breakdown looks like this:

Obama: 19

W: 6

Clinton: 12

H.W. Bush: 1

Reagan: 5

For today’s trip down memory (hole) lane, we’re going to focus on two uses of that statute in particular: one by President Reagan, amended and expanded by President H.W. Bush, and an unrelated one by President Clinton; what they meant for Trump in the past, and might mean for him again should he be reelected, or is that elected again, in November, and why I, a lowly shitposter without a Juris Doctorate (J.D.), i.e., a law degree, think Immigration Attorneys, Democrat politicians, the mainstream media are wrong.

Once upon a time in Florida

On September 29, 1981, in response to “arrivals [of persons by sea to the United States in violation of our laws],” which “severely strained the law enforcement resources of the Immigration and Naturalization Service [(INS)] and have threatened the welfare and safety of communities in that region [referring to South Florida],” then-President Reagan signed Presidential Proclamation 4865, “High Seas Interdiction of Illegal Aliens.” 

This “new” and promised to be “effective measure[] to curtail these unlawful arrivals [was deemed by President Reagan as] necessary[]” and lead to “intercept[ing] vessels trafficking [sic] (Ed. see, even back then people had a hard time with the difference between trafficking and smuggling) [] illegal migrants [as] a necessary and proper means of insuring the effective enforcement of our laws.”

This five-paragraph order (Ed. this was an entirely unintentional Marine Corps joke, IYKYK) would remain in force through the remainder of Reagan’s presidency and into his successors, resulting in Executive Order (E.O.) 12807. “Interdiction of Illegal Aliens” on May 24, 1992, because President George H.W. Bush found “[t]here continue[d] to be a serious problem of persons attempting to come to the United States to the United States by sea without necessary documentation and illegally.” More than 30 years later, this E.O. is still in effect, having only been modified by George W. Bush’s February 28, 2003, E.O. 13286, “Amendment of Executive Orders, and Other Actions, in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security.”

Unlike Proclamation 4865, which addressed increasing numbers of Haitians on the heels of the “Mariel Boatlift,” Haitians were the unspoken target of E.O. 12807. The latter, unlike the former, not only specifies that “[t]he President has authority to suspend the entry of aliens coming by sea to the United States without necessary documentation, to establish reasonable rules and regulations regarding, and other limitations on, the entry or attempted entry of aliens into the United States, and to repatriate aliens interdicted beyond the territorial sea of the United States” but also clarifies the United States’ “legal obligations [] under the United Nations Protocol Relating to the Status of Refugees” prohibiting expulsion or return under “apply Article 33 of the United Nations Convention Relating to the Status of Refugees do not extend to persons located outside the territory of the United States.”

Once you’ve finished this, I recommend Episode 415 of the Conservative Review with Daniel Horowitz, who had as his guest a man named Dan Vara, who, from 1990 to 2003, was Legal Counsel for INS and later Immigration and Customs Enforcement (ICE) in Miami. Mr. Vara, a CIS Board Member, was also a guest for Episode 66 of the Center’s podcast, Parsing Immigration Policy, whose subject was “Solutions for Ending the Border Crisis and Creating an Effective Process for Removals from the Interior.”

Lawfare isn’t new

While the term lawfare may go back to 1975, it became common in the American lexicon in the 2000s, and the term was chosen as part of the name of a blog in the 20-teens. Still, in the context of immigration, most people associate it with responses to actions taken by the Trump Administration. 

Still, despite having quickly and easily racked up a record number of lawsuits seeking to roll back its immigration-related actions, the Trump Administration wasn’t actually the first to be sued over the use of INA § 212(f). Now that I’ve explained the section’s history, that distinction seems to go to the Regan Administration—Hell, the Trump Administration doesn’t even win bronze for a third-place finish. Still, before we talk about cases, just what does that particular part of the law say?

Suspension of entry or imposition of restrictions by President Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the [country], he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class [] as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

While I’m perfectly capable of detailing various District and Appeals Court cases related to INA § 212(f), I’d rather not subject you to reading about them—especially not at the risk of driving you away. Instead, I’ve opted to focus primarily on two Supreme Court cases and one appellate case that wasn’t further appealed to SCOTUS, with any other cases appearing in supporting roles.

Since I referenced bad-faith arguments in the introduction, starting with Trump v. Hawaii, 585 U.S. ___ (2017) seems only appropriate. In that case, which, as I alluded to earlier, was related to President Trump’s “travel ban,” Chief Justice John Roberts, on behalf of the majority consisting of himself and Justices Kennedy, Thomas, Alito, and Gorsuch, found in part:

By its terms, § 1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (‘all aliens or any class of aliens’); for how long (‘for such period as he shall deem necessary’); and on what conditions (‘any restrictions he may deem to be appropriate’). It is therefore unsurprising that we have previously observed that § 1182(f) vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA. [emphasis mine]”

The opinion continued, but I’ve intentionally left that out. Not because it’s irrelevant or somehow undercuts my argument, but because part of this post would be instantly be rendered unnecessary, and you’d lose the benefit of my trying to explain it in context and to quote Bloomberg Media’s new brand campaign, “Context Changes Everything!”

Arguments currently circulating among the Right are that Biden could use § 212(f) to ‘close the border,’ he himself opened, while many of the counter-arguments being made by the Left, and by that, I mean primarily Immigration Attorneys who are arguing on behalf of themselves and Democrat politicians, only to be unquestionably repeated by various media outlets and parroted by a pliable public hinge on how Trump v. Hawaii ‘affected legal immigration’ while carefully ignoring other parts of case. These disingenuous arguments further benefit from the majority of the general public not realizing there were other cases before and after it, one of which I’m going to add to the discussion shortly, and that because of the recent language change intended to distract from the further opening of the Overton window of illegal and inadmissible entries by the Biden Administration, the vast majority of which aren’t by “asylum seekers.” This latter point isn’t an opinion; it’s a fact, verifiable by anyone with access to the internet, knowledge of where to find the information to do so, and a calculator. Examples include Customs and Border Protection’s “Claims of Fear” page, which inexplicably hasn’t been updated since FY 2019, U.S. Citizenship and Immigration Service’s “Refugees and Asylees Annual Flow Report,” the most recently available being for FY 2020, and Office of Homeland Security Statistics’ monthly “Immigration Enforcement and Legal Processes Monthly Tables.” 

While only tangentially related to 212(f), the second SCOTUS case is Sale v. Haitian Centers Council, Inc., 509 U. S. 155. (1993). A reference to this case, filed in response to Presidents Reagan’s Proclamation, H.W. Bush’s E.O., and Clinton’s enforcement of same despite having initially rebuffed the idea, was the part of Trump v. Hawaii I left out. In an 8-1 decision, where only Nixon appointee Harry Blackmun dissented, the Court held: 

The wisdom of the policy choices made by Presidents Reagan, Bush, and Clinton is not a matter for our consideration. We must decide only whether Executive Order No. 12807, 57 Fed. Reg. 23133 (1992), which reflects and implements those choices, is consistent with § 243(h) of the INA. [Emphasis mine]”

Note: As part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 itself contained in the Omnibus Consolidated Appropriations Act of 1997, Pub.L. 104-208, INA § 243(h) would be reassigned from 8 U.S.C. § 1253, Penalties related to removal to 8 U.S.C. § 1231, Detention and removal of aliens ordered removed, INA § 241(b)(3).

When closed doesn’t really mean it

I’m writing this post in response to the recent bipartisan Senate bill, the “Emergency National 5 Security Supplemental Appropriations Act, 2024,” not about it, so I’m just going to say that the heading of this section is a not-so-subtle swipe at the bill. Anyway…

Section 2 of the Secure Fence Act of 1996, Pub.L. 109-367, requires the DHS Secretary to “[n]o “later than 18 months after the date of the enactment of th[e] Act, [] take all actions [they] determine[] necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States,” with ‘operational control’ mea[ing] the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” We” can and should debate the success of everything after “other unlawful aliens,” but” neither is going to happen today nor here.

Even ignoring Title 42 in FY 2020 and the “Trump “effect” in” FY 2017, which, when deducting SW Border apprehensions while Obama was still POTUS, totaled 135,694, and despite factoring for lawfare in FYs 2018 and 2019, SW Border apprehensions in Trump’s worst year, were more than 1.5x lower than Biden’s first year, FY 2021 of which approximately 284,658 occurred before the latter’s inauguration. For those who are mathematically challenged, 135,694 apprehensions over eight months (February – September) is approximately 16,962 per month or 561 per day versus 1,374,548, which comes out to 171,818 per month and 5,680 per day—680 enough illegal entries to necessitate “closing” the border were the Emergency National Security Supplemental Appropriations Act, 2024” to become law. Much ado has been made about that particular provision, SEC. 244B(b)(3), with only one side, and it wasn’t the Left, acknowledging many of the first 5,000 would be released into the United States, a not-at-all unreasonable suspicion given 44.42% of apprehended border crossers were released into the U.S. in FY 2023, and so far in FY 2024, 70.69% have been. 

Releases notwithstanding, and loathe as I am to be mistaken for in any way defending Alejandro Mayorkas, he is correct when he observes none of his predecessors has ever truly had “operational control” of the Southwest Border. Absent resorting to Crimes Against Humanity, and I’m specifically referring to shooting at aliens, employing anti-personnel land mines, dropping napalm, etc., the border would never really physically close, even with a “wall,” literally and legally, a fence. However, I don’t think it unreasonable to make good-faith efforts as the Trump Administration did, and 561 crossings per day, 847 if we include the estimated 69,129 ‘got aways’ during that same period, is a lot closer to zero than 5,680 before an estimated 259,333 ‘got aways’ during the same period is. And, for the “what about ‘asylum seekers,’” crowd? Well, only 146,165 Defensive Asylum applications were filed in FY 2017. Critics might observe that per 8 U.S.C. § 1158(a)(2)(B), an alien has up to a year to apply. However, even if we substitute requests submitted during FY 2018, it was still just 165,975 compared to all apprehensions and inadmissibility determinations nationwide. No matter how people want to spin the truth and how much gaslighting they resort to, in order to do so, the vast majority of apprehended border crossers and aliens deemed inadmissible at Ports of Entry aren’t coming for asylum—not fakely nor sincerely—not to mention the U.S. Government doesn’t collect or publish data on the former, only whether cases were Granted or Denied, or have another disposition, e.g., abandonment, received Withholding of Removal under the Convention Against Torture (CAT), were not adjudicated, or were withdrawn.

Obsession doesn’t have to lead to destruction

“As for me, I am tormented with an everlasting itch for things remote. I love to sail forbidden seas, and land on barbarous coasts.” 

~ Captain Ahab, Moby-Dick by Herman Melville (1851)

There’s a concept in immigration case law originating with SCOTUS in Shaughnessy v. Mezei, 345 U.S. 206 (1953) called the “entry fiction” doctrine, where while “[i]t “is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. … But an alien on the threshold of initial entry stands on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’…”’ While writing this piece, I happened across an amici curiae submitted to SCOTUS for a case, Castro, et al. v. DHS, et al., for which certiorari was denied on 17 April 2017, that I think explains “entry fiction” well. 

“Under the limited carve-out created by the entry fiction, an alien’s arrival at a port of entry (which is geographically within the United States) does not qualify as entering the country. As held in Mezei, ‘harborage at Ellis Island is not an entry into the United States.’ [] For due process purposes, then, an alien at a port of entry ‘is treated as if stopped at the border.’ [] Similarly, the entry fiction applies when an alien is ‘paroled’ admissibility. [] This doctrine likens the alien in line at immigration at JFK Airport to one standing at the border in Canada; although a port of entry may be physically within the United States, one who has not completely passed through it has no constitutionally protected liberty interest in entering the country.”

Having explained “entry fiction,” there’s a case of which I’ve long been aware, but because it was non-precedential and unpublished, it has, for years, been the immigration equivalent of my personal “white whale.” I’ve tried to learn as much as possible about it because of its relation to other cases, past and relatively recent, and immigration-related events spanning my Federal career. I won’t say that I doggedly pursued information about the case, but I didn’t simply give up when I realized it was not widely available or known. Still, what I didn’t know after years of trying to find more information about the case to understand what it might have meant during the Trump Administration and the possibility, nay likelihood, of another one was that just because it wasn’t published in the Federal Reporter didn’t mean it was entirely unavailable. It turns out my employer provides a resource allowing me to read the case from the comfort of my desk. (Ed. Lawyers are probably reading this and snickering, but if I were an attorney, which, if you haven’t been paying attention, I’m not, I imagine I would have known).

This brings us to the last of the three foundational 212(f) cases, Sesay v. INS, 74 Fed. App’x 86 (2d Cir. 2003). Interestingly enough, one name of the three-judge panel that heard the case jumped out at me: Sonia Sotomayor. Yes, that Sotomayor. The “wise Latina” herself!

Precedential Presidents

Petitioner Philip Sesay was a native and citizen of Sierra Leone. Since 1980, he’d been a civil servant for his government. By 1996, Sesay was the Acting Director of Protocol for the Ministry of Foreign Affairs in the government of then-President Ahmed Tejan Kabbah. In May 1997, Kabbah was removed from power in a forcible coup by a paramilitary group known as the Armed Forces Revolutionary Council “AFRC”). The AFRC directed all civil servants to remain working in their positions. Sesay complied but, within days, submitted a request to visit his family in the United States for three weeks, but his request was denied. At some point hereafter, he was informed he had been appointed State Chief of Protocol. Sesay claimed he accepted the appointment, fearing being killed for refusing.

Sesay made continued attempts to leave Sierra Leone and was finally allowed to depart in December 1997. He arrived to the United States via JFK International Airport on December 20, 1997. Sesay presented an Immigration and Naturalization Service Service Inspector a Sierra Leonean diplomatic passport. Upon discovering his passport had been voided, Sesay told the inspector he was seeking asylum, was found to have a credible fear of persecution, and consistent with 8 U.S.C. 1225(b)(1)(B)(ii), detained for further consideration of his application. On January 14, 1998, Sesay was served with a Notice to Appear charging him as inadmissible for failing to have a valid entry document per 8 U.S.C. 1182(a)(7). Unfortunately for him, and despite his having arrived to the United States almost a month earlier—remember, “entry fiction” President Clinton issued Proclamation 7062, invoking INA § 212(f) to suspend entry as Immigrants and Nonimmigrants of persons who were members of the military Junta in Sierra Leone and members of their families. 

Two weeks later, Sesay’s immigration proceedings began, and he formally applied for asylum and withholding of removal. In April 1998, the Department of State’s Office of Asylum Affairs issued an advisory opinion concerning Sesay, indicating it considered him a junta member and, therefore, subject to the Proclamation. An Immigration Judge denied Sesay’s request for asylum and withholding of removal in September 2018, and he was ordered removed (deported), finding he was ineligible for asylum because he was barred from entering the United States due to the Proclamation. While he was deemed eligible for withholding of removal, he was found not to have proven that he was more likely than not to be persecuted if returned to Sierra Leone.

Sesay appealed to the Board of Immigration Appeals (BIA), arguing he was eligible for asylum and entitled to withholding of removal. The BIA, in December 2000, upheld the initial decision regarding asylum but remanded the request for withholding, which was granted due to Sierra Leone’s violent and unstable conditions and Sesay’s unpopularity with both the AFRC and Kabbah supporters. Dissatisfied, Sesay appealed to the Second Circuit, claiming the BIA erred, finding he was ineligible for asylum because the Attorney General could have circumvented the bar to entry posed by the Presidential Proclamation by granting him asylum and then immediately paroling him into the country. 

“[B]ecause parole is a form of custody,” Sesay argued, “an alien who has been paroled, like a detained alien, is considered not to have made an entry into the United States.” So, “granting [him] parole [he concluded,] would not be inconsistent with section 212(f) because no entry would be effected.”

In accordance with 8 U.S.C.S. § 1182(d)(5)(A), parole is a legal status that may be granted to inadmissible aliens under such conditions as the DHS Secretary, the Attorney General at the time Sesay’s legal woes began, prescribes, but contrary to how the Biden Administration is using it for its questionably legal “Lawful Pathways” programs, only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Parole allows an alien to be physically present in the United States for a specific reason, e.g., to “seek asylum” and for a finite period without being admitted. Once the reason for parole has ceased, or the alien violates the conditions, they are to be returned to the government’s custody.

While creative, Sesay’s appeal was ultimately denied on August 20, 2003.

I’d love to tell you what became of Philip Sesay, but information is scant. While he was granted CAT withholding, it seems he might have eventually returned to Sierra Leone as I found a reference to “[a] Sierra Leonean diplomat, Dr.Philip Sesay, [having died in 2006] … after losing his job at the Foreign Ministry[] [and having been] prevented from leaving the country to join his family in the US” which despite the commonness of the surname Sesay in Sierra Leone and among the diaspora living in the United States, does seem to describe him accurately, but I digress.

On November 9, 2018, in response to increased illegal entries along the Southwest Border that had increased more than 100% from the prior October and were now primarily so-called Family Units, which can only be detained for a maximum of 20 days due to the Flores Settlement Agreement (Flores for short), rather than Single Adults, the Trump Administration published what is known in government-speak as an Interim Final Rule (IFR) in the Federal Register, “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims.” Unsurprisingly. the IRF, or Rule for short, was decried by asylum-shopping migrants, Immigration Attorneys, Non-Governmental Organisations, pro-immigration think tanks, Democrat politicians, and the mainstream media as an “asylum ban.” The Rule:

  • Governed eligibility for asylum and screening procedures for aliens subject to a presidential proclamation or order restricting entry issued per section 212(f) of the INA, 8 U.S.C. 1182(f), that concerns entry to the United States along the southern border with Mexico;
  • Rendered aliens who would enter the U.S. illegally, i.e., between Ports of Entry, ineligible for asylum if they enter the country after the effective date of any such a proclamation;
  • Intended to encourage inadmissible aliens who would enter between Ports of Entry to indicate an intention to apply for asylum at ports of entry;
  • Continued to afford protection under CAT from removal for individuals who establish that they are more likely than not to be persecuted or tortured in the country of removal.

 

What I didn’t realize procedurally, the rule required, was for an Asylum Officer to “enter a negative credible fear determination with respect to [an] [] application for asylum [for any alien subject to a § 212(f) designation, even if “[t]he Department [DHS] nonetheless place[d] the alien in [deportation] proceedings … for full consideration of the alien’s claim for withholding of removal under section 241(b)(3) [or] under the Convention Against Torture if the alien establishes a reasonable fear of persecution or torture.” I don’t care how easy it is for aliens to convince an Asylum Officer in an interview they are credible, how often the latter find the former credible in such interviews, or how aliens initially found credible nevertheless aren’t usually granted asylum; there is no circumstance where I could endorse or support entering an adverse determination for an alien who is found credible simply for being inadmissible and having entered the U.S. in violation of § 212(f). When it comes to enforcement of Immigration Law, I might well be a monster, but I have decency, and even if I didn’t, I’ve sworn an oath to uphold the law. I mean, even Philip Sesay was able to ‘request asylum.’

The same day the IFR was published, a group of non-profits arguing they had Article III standing to bring the case because the Rule “undermine[d] their missions and [would] cause them to divert resources,” would necessitate their having to ‘revise or create new learning and engagement materials,’ and it would jeopardize critical “funding streams.” (Ed. Let that sink in!) filed a lawsuit against the Trump Administration, East Bay Sanctuary Covenant, et al. v. Trump, et al. (4:18-cv-06810) in the Northern District of California, which was thereafter assigned to Judge Jon S. Tigar, notable for having previously enjoined the Trump Administration from separating children, an issue that, about like Flores, I’ve also written. 

Not only did whoever prepared the filing for the lead Plaintiff, the East Bay Sanctuary Covenant (EBSC), misspell the acronym 18 of the 21 times it appears, they argued: “[i]f ESBC is no longer able to handle affirmative asylum cases for individuals who enter without inspection, it will face a marked decrease in its budget and will have to significantly cut its program and staff, or dramatically overhaul its program to provide types of assistance is it not currently equipped or trained to provide. This claim is hilarious to me because the rule involved aliens who, before this administration, would have been ineligible to request asylum affirmatively unless they successfully evaded apprehension between POEs and weren’t deemed inadmissible at a POE. Unfortunately, I wasn’t consulted before the Department of Justice responded to the suit because the latter would absolutely have been raised.

Further, I’m sure no one reading this will be surprised when I say it only took ten days for those groups to secure a Temporary Restraining Order (TRO) and a preliminary injunction nationwide–a practice Justices Thomas and Gorsuch have separately criticized in Trump v. Hawaii and later in DHS, et al. v. New York, et al. (ligation against the Trump Administration’s Public Charge rule). Judge Tigar’s order found “[t]he rule … irreconcilably conflicts with the INA and the expressed intent of Congress” and stated, “[w]hatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden” and that, the “Defendants’ claims that the rule can somehow be harmonized with the INA are not persuasive.”

On November 27, 2018, the Trump Administration filed an appeal with the Ninth Circut and an Emergency Motion to Stay, the latter being denied on November 30. On December 7, despite acknowledging:

We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase” and that “[o]ur obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases[emphais mine][,]” the Ninth Circuit upheld the District Court Order.

On December 11, 2018, the Trump Administration filed an appeal with SCOTUS for a stay, which was denied by the Court ten days later though, “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would [have] grant[ed] the application.”

The story of litigation related to the 2018 Rule is long, convoluted, and almost worthy of a post of its own.

Bad rulings and hypocrisy

While litigation regarding the 2018 Rule continued, in mid-July 2019, in response to border apprehension numbers that had been steadily increasing since March and peaked in May with 132,856 apprehensions, 84,486 of which were Family Units, the Trump Administration took another stab at a cross-border 212(f) proclamation, this one, formally known as the “Asylum Eligibility and Procedural Modifications,” would require any non-Mexican alien intending to seek asylum in the United States after entering between Ports of Entry, i.e., illegally, to have first done so in at least one other country prior to arriving. Virtually every country in the Western Hemisphere, absent Guyana, Cuba, and another handful of small countries off South America’s coast, is a signatory to the 1967 Protocol Relating to the Status of Refugees, making the proposal seemingly reasonable. Perhaps predictably, it resulted in a lawsuit filed by the same Plaintiffs as before, hence being known colloquially as “East Bay II.” For those wondering, no, the filing didn’t have the same awkward typo but did make the same injury claims.

The case was initially not assigned to Judge Tigar but was reassigned to him on July 17, 2019, given the similarity of the two Rules. Rather than recounting all of the procedural filings and arguments that were almost exactly the same, I’ll summarize this new case as having been preliminarily enjoined on July 24, with Tigar finding:

“The Rule purports to offer asylum seekers a safe and effective alternative via other countries’ refugee processes. As the Rule expressly contemplates, this alternative forum will most often be Mexico. But the government’s own administrative record contains no evidence that the Mexican asylum regime provides a full and fair procedure for determining asylum claims. Rather, it affirmatively demonstrates that asylum claimants removed to Mexico are likely to be (1) exposed to violence and abuse from third parties and government officials; (2) denied their rights under Mexican and international law, and (3) wrongly returned to countries from which they fled persecution.”

Interestingly, despite mentioning it twice, Tigar seems to ignore that 8 U.S.C. § 1158(b)(2)(C) allows the DHS Secretary to, “by regulation establish additional limitations and conditions, consistent with [the conditions] under which an alien shall be ineligible for asylum, and that (a)(2) specifies the DHS Secretary may remove an alien, “pursuant to a bilateral or multilateral agreement,” which the 1967 Protocol is, “to a[ny] country (other than the country of the alien’s nationality …) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection[.]” Nowhere does the statute specify provide any manner of exception for “violence and abuse from third parties and government officials” unless of course, it were somehow related to action or inaction by the latter related to race, religion, nationality, membership in a particular social group, or political opinion. Furthermore, while complaining, “the government’s own administrative record contains no evidence that the Mexican asylum regime provides a full and fair procedure for determining asylum claims.” 

Further, 8 CFR § 208.13 provides for additional grounds for discretionary denial, such as:

  • An alien’s unlawful entry or unlawful attempted entry into the United States unless such entry or attempted entry was made in immediate flight from persecution in a contiguous country or unless such entry or attempted entry was made by an alien under the age of 18;
  • The failure of an alien to apply for protection from persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited before entering the United States unless:

(A) The alien received a final judgment denying the alien protection in such country;

(B) The alien demonstrates that he or she satisfies the definition of “victim of a severe form of trafficking in persons” [;] or

(C) Such country or all such countries were, at the time of the transit, not parties to the 1967 Protocol relating to the Status of Refugees, or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Tigar’s injunction was appealed on July 29 and denied by a three-judge panel for Ninth Circuit on August 16. However, it pared the injunction down to California, Arizona, and New Mexico. Still, by September 9, 2019, Judge Tigar had renewed the nationwide injunction despite a case in another Federal district that resulted in no injunction. The conflicting rulings resulted in an appeal to SCOTUS, which, despite a dissent from Justices Sotomayor and Ginsburg, stayed Tigar’s nationwide injunction during ongoing proceedings. On July 6, 2020, the full Ninth Circut restored the nationwide injunction. This back-and-forth nonsense continued almost unabated until June 24, 2022, when the Biden Administration, consistent with  Executive Order 14010, “Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border” notified the Court of its “ongoing review of the rules, and the possible modification or rescission of those rules,” presumably referring also to the 2018 rule. The parties requested, and the Court granted, a stay pending the completion of the government’s review with the parties to update the Court every 90 days on the status of the rulemaking.

In a stunning and brazen display of hypocrisy, given statements made by candidate and then President-elect Biden, as well as his myriad of executive actions taken within his first 100 days, on May 16, 2023, the Biden administration published a watered-down version of the Trump-era “asylum ban,” called “Circumvention of Lawful Pathways,” which would absent exceptions like Unaccompanied Alien Children, not only ban “asylum seekers” who travel through another country without first requesting asylum, and have been denied, before arriving to the U.S., and require those who intend to request asylum here to use the CBP One™ app. Unlike its predecessors, this Rule was not only “Final” rather than Interm-Final; it was retroactive to May 11, 2023.

Because the alternative would involve someone within the U.S. Government leaking information, I can only imagine due to what is a quirk with how Federal Register notices are filed and published in the digital age that I’m not going to bore you explaining, several of the usual suspects were able to get their latest lawsuit filed on May 11 decrying the Biden Administration’s efforts, “[an] attempt[] to resuscitate and combine the illegal features of the two previous asylum bans that this Court and the Ninth Circuit found to be unlawful” as if the Ninth Circut were the final arbiter of what is and isn’t unlawful, and both prior Rules weren’t still in litigation though describing the 2019 version that way is being somewhat generous.

While Judge Tigar similarly enjoined the Biden Rule on July 25, 2023, a curious thing occurred when his ruling was appealed to the Ninth Circuit. I could tell you, but then you’d miss out on the blistering dissent of Lawrence VanDyke, appointed by then-President Trump (Ed. I know it’s a lot to read, so I promise if you only read the parts I’ve emphasized in bold, you won’t miss much):

“My colleagues in today’s majority grant a stay pending appeal of a district judge’s order vacating a recently promulgated immigration rule. Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration’s rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry (the Port of Entry Rule). … They did so in a published, precedential opinion, undeterred by a chorus of dissenting colleagues. … Quickly thereafter, one of my colleagues in today’s majority penned another published, precedential decision again affirming a Judge Tigar decision striking the Trump administration’s rule restricting asylum eligibility for aliens who passed through another country on the way to the United States without seeking asylum in that country … The panel there did so notwithstanding the Supreme Court’s earlier decision in that very case staying Judge Tigar’s rulings pending appeal, Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019), evincing that the government had made the requisite “strong showing” that it was likely to succeed in its defense of the rule

It’s not an exaggeration to say that, whenever the Trump administration sought to make any meaningful adjustment to our nation’s immigration rules, the Northern District of California and ultimately our Court- systematically killed each of those changes.

The Biden administration’s “Pathways Rule” before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues. This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app. Relying on this Court’s rationales in our prior decisions rejecting the Trump administration’s rules, Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He’s right. For those who value the rule of law, following precedent, and

predictability, one must conclude Judge Tigar had no choice but to vacate the current administration’s Pathways Rule for the reasons that he first provided and my colleagues then established as binding precedent during the Trump administration.

I’d love to join my two colleagues in staying Judge Tigar’s ruling. I obviously agree with that result as a matter of first impression. … But unlike my colleagues, I cannot so easily ignore our circuit’s binding precedent. And that is particularly true given the demanding standard the government faces in asking us for a stay. Among other hurdles the government must overcome, it must make a “strong showing” that, applying our Court’s caselaw, it “is likely to succeed on the merits. … That simply is not possible under the sweeping rationales this Court applied in our still-steaming cases terminating the Trump administration’s immigration rules.

My colleagues, who made all that precedent, should not be able to now just elide it. It’s hard to shake the impression that something other than the law is at work here.”

What do Experts say?

Merriam-Webster defines an expert as “having, involving, or displaying special skill or knowledge derived from training or experience[.]” Depending on your perspective, that might or might not include me. Still, as someone with almost twenty years of experience working in immigration and enforcing statutes that fall under Title 8 of the U.S. Code, I’ve found that Immigration Attorneys view themselves as the sole arbiters of those laws. As if Immigration Attorneys acting as if their interpretations of the law are unassailable; worse, is that it often seems like virtually every jagoff on X with a J.D. or “Esq.” after their name, thinks they’re an immigration expert, even if their practice is limited to corporate or real estate law. 

To be clear, I’m neither authoritatively stating nor suggesting with 100% certainty that the Supreme Court would have ruled in favor of the Trump Administration or might in the Biden Administration’s regarding their respective proposed asylum transit bans; I mean, look at how often Chief Justice Roberts, along with Associate Justices Gorsuch, and Kavanaugh rule contrary to how people anticipate. However, to paraphrase Don McLean from “American Pie,” the three men after The Father, Son, and the Holy Ghost I admire most, and whom I toast as acknowledging know more than I about the INA, seeming to think it possible, caught this train for the coast. Surely, a ruling favoring such a prohibition would indeed be “the day the music died.”

First up, in December 2022, was former Immigration Judge Andrew “Art” Arthur writing for CIS:

Jean-Pierre is correct that “Title 8 … allows a process to make sure that people can make their asylum claims heard” in sections 208 and 235 of the INA. What she misses, however, is that the authority in section 212(f) allows her boss to trump those provisions, and every other admission directive in the INA.

Congress has been floundering around trying to craft some immigration authority that would substitute for the public-health authorities in Title 42, to address the burgeoning surge of illegal migrants at the Southwest border.

Meanwhile, the White House has been portraying itself, Romeo-like, as “fortune’s fool”, subject to the whims of the federal judiciary on Title 42 and defenseless against any and all foreign nationals who seek to enter the United States illegally, while at the same time impotent to meet the ‘operational control’ mandate.

None of it’s true. Section 212(f) of the INA gives the executive branch the authority to do — even absent a border emergency — what those CDC expulsion orders currently direct Border Patrol agents to do, that is, ‘suspend the entry of all aliens or any class of aliens’ through expulsion.”

In April 2023, Nolan Rappaport, a noted and prodigious Opinion columnist for The Hillwrote:

“US asylum law allows the president to suspend the admission of asylum seekers: INA section 1182(f) provides the president with virtually unlimited power to suspend the admission of any migrant, or any class of migrants. The Supreme Court has held that the sole prerequisite to exercising this power is that the president must find that the entry of the covered migrants ‘would be detrimental to the interests of the United States.’” 

George Fishman, also of CIS, provided his own analysis in October 2023 after Fareed Zakaria quoted Rappaport in September wrote:

“I served with [Nolan] Rappaport (who, years ago, was my Democrat counterpart on the House Judiciary Committee’s immigration subcommittee). I know Nolan Rappaport. Nolan Rappaport is a friend of mine. I’m no Nolan Rappaport. …

[A] § 212(f) proclamation would be totally ineffectual in terms of addressing the crisis at our southern border unless aliens who ignore its terms and enter the U.S. anyway can actually be expeditiously removed. … the Supreme Court in Hawaii did read one limitation into the provision, stating that ‘[w]e may assume that §[212](f) does not allow the President to expressly override particular provisions of the INA,’… The 9th Circuit prevented the Trump administration from implementing a § 212(f) proclamation that could have actually been successful. The Court’s decision was an utter travesty. But, unfortunately, while it stands, any [such] proclamation seeking to remedy the current border crisis will sadly be ineffectual—except to the extent that it occasions a naval blockade or other means of preventing prospective illegal migrants from entering the United States in the first place.”

Conclusion

Non-precedential, as Sesay might be, it suggests aliens don’t need to be literally stopped from physically crossing the border or from presenting at Ports of Entry inadmissible if there’s little chance of release, a high likelihood of being expeditiously removed; there’s a possibility of being forced to wait in Mexico or being transferred to a third country, and couldn’t be granted asylum, only withholding under CAT even if credibly afraid or persecution, or a victim of it. Genuine “asylum seekers” can and should seek it closer to where they’re being persecuted, and unfortunately, might need to be forced to in the pursuit of keeping hordes of opportunistic economic migrants at bay.

Either way, we’ll find out soon enough if my legal analysis is right or wrong because the next Supreme Court term and the 2024 Presidential election are both close at hand.

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