As I have explained numerous times of late, the Biden administration is now funneling would-be illegal migrants through the ports of entry without actually stopping them from entering the United States illegally, and pretending it’s all legal. It’s not, so let me break it down. The key takeaway is that it is no more “legal” for aliens to seek entry at the ports without documents than it is for them to enter illegally without documents between ports of entry. Whether the “immigration officer” who encounters that alien is wearing CBP officer blue or Border Patrol green, the same rules apply.
Two Kinds of Aliens — and a Whole Lot of Subcategories. Under the Immigration and Nationality Act (INA), there are two primary classes of aliens: Aliens who are removable from the United States, and aliens who aren’t. There are a lot of subcategories of aliens who aren’t removable, and almost as many categories of aliens who are.
At the top of the list of aliens who aren’t removable from the United States are “lawful permanent residents” (LPRs), commonly known as “green card holders”. They can live and work in the United States permanently — provided they don’t fall into a status that renders them removable — and to apply after a set period for “naturalization”, the process by which they can become citizens.
Many people — in the White House, in the media, and even in Congress — think appearing at ports of entry without documents and claiming asylum is somehow “more legal” than entering illegally without documents and claiming asylum. It’s not.
Then there are refugees and aliens who have been granted asylum (commonly known as “asylees”). They also can remain permanently provided they don’t fall into a removable status, and to apply under section 209 of the INA to become LPRs after they have lived in refugee or asylee status here for a year.
Next are “nonimmigrants”, aliens coming temporarily as tourists, students, diplomats, fiancé/es, etc. or to do certain kinds of work under restrictions Congress has placed on their individual nonimmigrant status. So long as they comply with those terms, don’t fall into a status that renders them removable, and leave when they are supposed to, the INA leaves them alone.
Some nonimmigrants can change to another nonimmigrant status, and some can “adjust” their status and become LPRs, too — subject to exceptions, and provided they’re eligible for an immigrant visa, an immigrant visa is “immediately available” to them, and they’re not “inadmissible” (a concept I’ll discuss below).
Then, there are aliens who are removable from the United States. Whether and how they’re removable depends on whether they were admitted (also a concept I’ll explain below) or not.
Whether lawfully admitted aliens are removable depends on whether they fall within one or more of the classes of “deportable” aliens in section 237 of the INA or not.
Admitted aliens may be deportable because they weren’t admissible when they were admitted, they violated the terms of their nonimmigrant status, they committed certain criminal offenses, or on security grounds — the list goes on and on and includes Nazi persecutors and unlawful voters.
When lawfully admitted aliens are charged with deportability, ICE bears the burden under section 240(c)(2) of the INA to establish “by clear and convincing evidence that” they are “deportable”.
Then, there are aliens here who haven’t been admitted. They are deemed to be seeking a visa or admission, regardless of whether that’s true or not.
Unlike aliens charged with deportability, section 291 of the INA provides that any alien who applies for “a visa or other document required for entry, or makes application for admission, or otherwise attempts to enter the United States” bears the burden of proof “to establish that he is eligible to receive such visa or such document, or is not inadmissible” under any of the grounds of inadmissibility.
The grounds of inadmissibility are set forth in section 212(a) of the INA. While they largely overlap with the grounds of deportability in section 237, many are unique to aliens seeking admission — specifically grounds barring aliens from admission because they lack immigrant or nonimmigrant visas or other proper documents to enter the country.
Congress Makes the Rules the Administration Is Required to Follow. You will note that there are a lot of statutory provisions cited above, with good reason. Congress wrote the INA and has amended it hundreds of times in the last 71 years.
Under the U.S. Constitution, Congress — not the executive branch — makes the rules on who gets in and who should be kept out. Or, as the Supreme Court put it more eloquently in its 1954 decision in Galvan v. Press, a constitutional challenge brought by an LPR charged with deportability based on membership in the Communist Party:
The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly, our foreign relations and the national security.
...
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. ... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added; citations omitted.]
The Inspection and Admission Process. To ensure that its “policies pertaining to the entry of aliens” are complied with by the executive branch (in the current case the Biden administration), Congress in 1996 detailed in statute the process by which the then-INS, and now-CBP, must inspect and, when appropriate, admit aliens to the United States.
In my May 30 post, “What’s Biden Doing with Migrants at the Ports of Entry? Regardless, his mass-release scheme isn’t legal”, I explained, with all applicable statutory cites, why the Biden administration’s current “inspect and release” scheme at the Southwest ports of entry fails to comply with the rules Congress has implemented, and therefore “isn’t legal”.
There is still some confusion among those in the media, “experts”, and many on Capitol Hill, however, who believe that aliens who come to the ports without documents are “seeking to enter the United States lawfully”, as opposed to illegal entrants, who plainly aren’t.
That former claim, as I will explain, is being driven by the White House, but it’s wrong — neither are entering legally, and the law treats them exactly the same.
The Inspection Process for Alien “Applicants for Admission”. Section 235(a)(1) of the INA defines all aliens who attempt to enter the United States — both legal and illegal entrants, and both at the ports of entry and at the borders between the ports — as “applicants for admission”.
Section 235(a)(3) of the INA mandates that all applicants for admission be “inspected by immigration officers” to determine whether they’re inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA.
Those “immigration officers” may be Border Patrol agents (who wear green uniforms) who have apprehended an illegal entrant, or CBP officers (who wear blue uniforms) serving within the agency’s Office of Field Operations (OFO) who are inspecting an alien at a port of entry.
Regardless of whether those “officers” are wearing green or blue, their job is exactly the same — to keep inadmissible aliens out of the United States, not because what those aliens are doing is “wrong”, but, as I will explain, because Congress has said what they are attempting is not “legal”.
Under section 212(a)(7)(A)(i) of the INA, aliens are not admissible to the United States if they are:
not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document ... and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by [DHS under section 211 of the INA].
This is a basic fact of life for any person travelling from one country to another. They won’t let you in unless you have all the documents required for your entry — which is why the State Department has a webpage captioned “Get My Passport Fast”, and a separate “Lost or Stolen Passports Abroad” page.
If, following that inspection mandated by Congress in section 235(a)(3) of the INA an “immigration officer” — green or blue — determines that an “applicant for admission” is inadmissible under section 212(a)(7)(A)(i) of the INA, that officer has a choice.
Section 235(b)(1)(A)(i) of the INA allows that officer to “order the alien removed from the United States without further hearing or review” without obtaining a removal order from an immigration judge “unless the alien indicates either an intention to apply for asylum ... or a fear of persecution”. This is known as "expedited removal".
If the alien “indicates an intention to apply for asylum” or claims a fear of persecution, the immigration officer must “refer the alien for an interview by an asylum officer” from USCIS, pursuant to section 235(b)(1)(A)(ii) of the INA, to determine whether that alien has a “credible fear of persecution”, as defined in section 235(b)(1)(B)(v) of the INA.
Congress is clear, in section 235(b)(1)(B)(iii)(V) of the INA, that aliens “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”, and is equally clear in section 235(b)(1)(B)(ii) of the INA that if an asylum officer “determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum” (emphasis added).
I’ll return to these provisions below, but with only extremely limited exceptions, the “consideration of the application for asylum” is performed by an immigration judge in removal proceedings under section 240 of the INA.
The other choice that the “immigration officer” — again, green (Border Patrol) or blue (CBP officer at the port) — has in the case of an “applicant for admission” who is inadmissible under section 212(a)(7)(A)(i) of the INA is to place that alien directly into section 240 removal proceedings before an immigration judge, a procedure Congress provided for in section 235(b)(2)(A) of the INA.
Again, however, Congress made clear in that provision that an “applicant for admission” who the “examining immigration officer” — green or blue — “determines ... is not clearly and beyond a doubt entitled to be admitted ... shall be detained for” that section 240 removal proceeding (emphasis added).
“The CBP One App Interview Scheme”. Which brings me to a May 31 CBS News report captioned “U.S. plans to admit nearly 40,000 asylum-seekers per month through mobile app”. It explains that the Biden administration is expanding on a plan, first announced on January 5, to allow would-be migrants to schedule interviews at Southwest border ports of entry “to initiate a protection claim” in lieu of entering illegally between ports of entry.
For simplicity’s sake, I refer to that policy as the “CBP One App Interview Scheme”.
That scheme is largely clouded in secrecy, but whatever is happening during those interviews must conform with the inspection process Congress mandated in section 235 of the INA or it doesn’t comply with the INA, and thus is not “legal”.
Again, the Supreme Court was clear in Galvan that Congress — not the executive — makes the rules for who gets to come into the United States and how they are let in.
Perhaps the “applicants for admission” interviewed pursuant to the CBP One App Interview Scheme are subject to expedited removal under section 235(b)(1) of the INA. In fact, that January 5 announcement promised the administration would expand the use of expedited removal, but only for “individuals who attempt to enter the United States without permission”, logically meaning only illegal entrants.
In any event, credible fear interviews are time-consuming, and it’s doubtful 40,000 could be performed per month at the ports of entry without slowing legitimate entries to a crawl.
What About Asylum? So, they are likely being processed under section 235(b)(2) of the INA, and that brings me to an assertion in the January 5 announcement that aliens who avail themselves of the CBP One App Interview Scheme are “seeking to enter the United States lawfully through a U.S. port of entry”.
The term “seeking to enter the United States lawfully through a U.S. port of entry” isn’t defined in the INA, but no reading of the inspection process in section 235 of that act suggests that an alien “not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document” and who presents at a port of entry as an “applicant for admission” is “seeking to enter the United States lawfully”.
To the contrary, that alien is inadmissible under section 212(a)(7)(A)(i) of the INA by definition, in the exact same way that an illegal entrant without documents is inadmissible under that provision.
CBS News — like most of the media and taking its lead from the January 5 White House announcement — attempts to elide this distinction by stating simply, “Seeking asylum at a port of entry is legal under U.S. law.”
That is dispositively correct. But you know what else is equally “legal under U.S. law”? Entering illegally and “seeking asylum”. Here’s how the asylum statute, section 208 of the INA, begins:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, [section 235(b) of the INA]. [Emphasis added.]
In other words, there’s no distinction “under U.S. law” — none whatsoever — between an “applicant for admission” who’s “seeking asylum at a port of entry” and one who’s “seeking asylum after entering illegally”. The same inspection process in section 235 of the INA applies; the only difference is whether the “immigration officer” performing that inspection is wearing green or wearing blue.
For some reason, however, many — in the White House, in the media, and even in Congress — think appearing at ports without documents and claiming asylum is somehow “more legal” than entering illegally without documents and claiming asylum. It’s not — they’re equally in violation of the law because section 235 of the INA makes no such distinction.
“Shall be Detained”. That, in turn, brings me to the elephant in the room, the three provisions in section 235 of the INA that state inadmissible “applicants for admission” “shall be detained”.
The Biden administration has both contended that — notwithstanding section 235(b)(1)(B)(iii)(V), section 235(b)(1)(B)(ii), and section 235(b)(2)(A) of the INA — it has “prosecutorial discretion” to release illegal entrants and other inadmissible applicants for admission and that Congress has failed to give it sufficient resources to detain those aliens and therefore can release whomever it wants.
There would be some merit to the latter argument, except for the fact that Congress has no idea how much detention funding DHS needs to comply with its mandates and the Biden administration refuses to tell it.
As I recently explained, in its FY 2024 budget request the Biden administration told Congress it needs less detention space, even though it considers aliens who have entered illegally after November 1, 2020 a “threat to border security” and even while asserting that fewer beds are sufficient to “meet mandatory detention requirements”.
That’s not the end of it. In 1996, at the same time that Congress created the inspection process in section 235 of the INA and required the-then INS, now CBP, to detain all inadmissible applicants for admission under the provisions listed above, it also directed DOJ (now DHS) every six months to:
submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate estimating the amount of detention space that will be required, during the fiscal year, in which the report is submitted and the succeeding fiscal year, to detain all excludable ... aliens subject to proceedings under ... section 235(b)(2)(A) or 240 of the [INA].
That requirement remains in effect, at 8 U.S.C. § 1368(b), but neither the Biden administration nor (to my knowledge) any prior one since then has ever complied with it.
So, what about prosecutorial discretion?
At least one court (in Texas v. U.S., currently under consideration by the Supreme Court) has rejected an administration argument that it has discretion to create a “class wide rule” transgressing other detention mandates in the INA, while a different court (in Florida v. U.S., currently on appeal) specifically held that the words “shall be detained” in section 235 (b) of the INA “means what it says and that is a mandatory requirement”.
Florida involved DHS’s release of migrants who were released after apprehension by Border Patrol agents, but as I have explained above, section 235(b) of the INA doesn’t distinguish between “applicants for admission” encountered by CBP at the ports and those encountered between them. Regardless of whether the “immigration officer” doing the inspection is wearing green or blue, the same rules apply.
Parole and “Discretionary” Releases under Section 236(a). No one — least of all me — contends that notwithstanding all of those “shall be detained” references in section 235(b) of the INA, the Biden administration lacks authority to parole individual “applicants for admission” — again, encountered at the ports or between them — under section 212(d)(5)(A) of the INA.
Congress, however, tightly cabined that parole authority — again in 1996 — because it had been burned by prior administrations’ abuse of that power, as my colleague George Fishman has explained.
As amended in 1996, that statute currently provides that DHS may parole “any alien applying for admission to the United States”, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
Section 212(d)(5)(A) of the INA continues, explaining that “such parole of such alien shall not be regarded as an admission of the alien” and that “when the purposes of such parole shall ... have been served the alien shall forthwith return or be returned to the custody from which he was paroled”.
Parole is the only discretionary authority DHS has to release alien applicants for admission, as the judge in Florida held, but it’s also the lowest-hanging fruit for any state challenging the administration’s border releases, because the parole authority is so narrow by statute.
In fact, the judge’s order in Florida shut down a DHS mass-parole-release policy known as “Parole+ATD”.
Notably, the judge there concluded:
the evidence establishes that Defendants have effectively turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country by prioritizing “alternatives to detention” over actual detention and by releasing more than a million aliens into the country — on “parole” or pursuant to the exercise of “prosecutorial discretion” under a wholly inapplicable statute.
The ”wholly inapplicable statute” in question is section 236(a) of the INA, which is apparently the Biden administration’s current statute of choice for releasing aliens under its CBP One App Interview Scheme.
That statute states that “[o]n a warrant issued by” DHS, “an alien may be arrested and detained pending a decision on whether the alien is to be removed.” It continues, explaining that after such an arrest, DHS “may continue to detain the arrested alien” or “may release the alien” on bond or “conditional parole”.
According to OFO, in April it issued more than 24,000 Notices to Appear (“NTAs”, the charging document in removal proceedings) to inadmissible aliens it encountered. That’s slightly more than the 20,000 aliens per month CBS News reports OFO’s been processing under the CBP One App Interview Scheme, so it’s reasonable to conclude that most of those OFO NTAs were served on CBP One App interviewees.
The thrust of my referenced May 30 post was that DHS lacks the authority to release “applicants for admission” at the ports of entry under section 236(a) because it never actually arrests them, with reference to the applicable statutes.
I needn’t have bothered, because as the judge in Florida held, that section of the INA is inapplicable to illegal entrants apprehended by Border Patrol agents between the ports. As explained above, the same inspection process and the same detention mandates apply equally to inadmissible “applicants for admission” at the ports and between them — green or blue, it makes no difference.
So, if section 236(a) doesn’t give the administration the authority to release illegal entrants, it doesn’t give it the power to release inadmissible aliens who have applied through the CBP One App Interview Scheme.
I note that the state of Florida, on May 31, amended its complaint in a separate case, Florida v. Mayorkas (Florida II), to shut down NTA releases of illegal entrants under section 236(a) of the INA. It has not yet challenged such releases under the CBP One Port Interview Scheme, but the state of Texas, in Texas v. Mayorkas, did file such a challenge on May 23.
Regardless of whether an alien crosses the border illegally without documents or shows up at a port of entry without documents, the same law and detention mandate applies. In neither case are aliens “seeking to enter the United States lawfully”, even if they request asylum. Green or blue uniform, it’s all the same.