Statutes of Liberty: ‘No Kludges’ say federal judges — Biden border policy enjoined from left and right

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Doran Shemin, Esq., and Janice Chen, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

No one should envy the Biden Administration. Like Presidential Administrations before it, the Biden Administration is caught on the horns of a dilemma: rigorous border enforcement leads to federal injunctions, because enforcement frequently infringes on the legal rights of asylum applicants; rigorous protection for asylum applicants leads to increased border crossing rates, with real consequences for border towns and distant cities alike.

The Biden Administration has dealt with this dilemma with a carrot and stick approach. First, the Administration has worked to create alternative pathways which do not require presenting yourself at the border; and, in addition, the Biden Administration has made increasing use of humanitarian parole to permit asylum seekers to apply for asylum from deep in the interior of the U.S.; those policies are the carrot. (We wrote about those alternative pathways, in these pages, here.)

Second, the Administration attempted to force asylum seekers to apply for protection using a kludge-driven machine: the CBP One App. (We wrote about the CBP App in these pages, here.) Failure to use the CBP One App would, in the new policy, be punished with ineligibility for asylum; that’s the stick.

On July 25, Federal Judge John S. Tigar enjoined the stick. His reasoning was simple. U.S. law permits asylum applicants to apply for asylum, no matter how they entered the United States, and no matter where they entered the United States, politics be damned. If Congress wants to change that, let it do so.

Earlier this year, Federal Judge T. Kent Wetherell entered a Temporary Restraining Order against the carrot. His reasoning was simple. Under federal law, parole is a benefit to be granted sparingly, on a case-by-case basis, and the Biden administration has been using parole wholesale to deal with large migrant flows. If Congress wants to allow that, let it do so.

Both of these policies are kludges, and poor replacements for Congressional action. The Biden Administration, like the Trump Administration and the Obama Administration before it, has attempted to work around Congress via Executive Action, and the Biden Administration — like the Trump Administration and the Obama Administration before it — is losing in court repeatedly. That’s predictable, because U.S. federal law offers both generous procedural rights to asylum seekers and severely limits the discretion of the Executive to parole large groups of noncitizens into the United States.

Eventually, Congress will respond to the increasing pressure within the system, and enact real policy change. We hope that happens soon.

As always, we welcome your comments and will do our best to respond.