- Migrants have been pouring over the Southwest border illegally for the past three years because they know they’ll be released to live and work in the United States as “asylum seekers”.
- The Biden proclamation and its implementing rule would address such abuses by barring illegal entrants from making asylum claims whenever the seven-day average of Border Patrol apprehensions at the Southern and Southwest borders reaches 2,500 per day.
- This proclamation and rule are similar to, but less effective than, similar actions taken under the Trump administration in November 2018. Those actions were enjoined by the Ninth Circuit in a case the Biden administration has thus far refused to take to the Supreme Court.
- The Biden proclamation limitations and its asylum bar include numerous exceptions and loopholes that will significantly curb their effectiveness.
- Moreover, even migrants barred from asylum will be allowed to seek two other forms of protection, “statutory withholding” and protection under the Convention Against Torture (CAT).
- If Biden’s DHS continues to release illegal entrants who pass preliminary USCIS screenings for those humanitarian protections, the proclamation and rule will do little to stem the border crisis.
- The proclamation and rule are likely to face legal challenges in district and circuit court. The ultimate success of these proposals will depend on the willingness of Biden’s DOJ to litigate such challenges vigorously, but its track record is not good.
On June 4, the Biden administration rolled out its “Proclamation on Securing the Border”, complete with a “Fact Sheet”, DHS explainer, and (194-page) Federal Register notice with an implementing rule. Maybe the White House assumed smugglers would be too busy reading it all to find loopholes to run migrants into the country. In any event, here’s a first look at what this new policy entails — and a guess at where it is headed.
The 2,500 Per-Day Threshold. The key provision therein would suspend and limit entries into the country during any period in which CBP has made 2,500 or more encounters per day over a seven-day period. As I’ll explain below, however, not all “encounters” count.
In any event, that restriction would remain in effect until 14 days after the DHS secretary determines the seven-day encounter total average has dropped below 1,500. In other words, the limitation stays in place until total encounters drop below 10,500 per week, at which point they’d remain on hold until the seven-day encounter threshold hits 17,500, when they would kick in again.
This seems like a lot of math for a rule, and especially one dependent on the accuracy of CBP’s record-keeping and the sincerity of the secretary, currently the impeached Alejandro Mayorkas.
Of course, there are exceptions.
Excluded from that 2,500 average are unaccompanied alien children (UACs) from non-contiguous countries, i.e., aliens under the age of 18 from every country other than Canada and Mexico, travelling without an adult or guardian. In the first seven months of FY 2024, CBP encountered more than 52,810 such children at the Southwest border, an average rate of 248 per day.
Nor are all encounters counted for the purposes of this calculation.
The term “encounter” was coined by DHS in March 2020, at the outset of the Covid-19 pandemic (and more importantly, the first implementation of Title 42) to denote the sum total of illegal entrants apprehended by Border Patrol agents plus inadmissible applicants for admission stopped at the ports of entry by CBP officers in the agency’s Office of Field Operations (OFO).
Under a rather curious loophole, section 4(a) of the proclamation defines encounters in a like manner, while at the same time sections 2(a) and (b) specifically exclude OFO encounters (defined in section 4(a)(iii) as “noncitizens determined to be inadmissible at a southwest land border port of entry”) from the 2,500 and 1,500 daily average counts.
In other words, and unless I am missing something major, that 2,500 per-day count includes only illegal migrants apprehended by Border Patrol agents entering illegally over the border between the ports.
That said, not only aliens apprehended at the Southwest border are counted, but also aliens caught at the “southern coastal borders”, defined in section 4(b) as:
all maritime borders in Texas, Louisiana, Mississippi, Alabama, and Florida; all maritime borders proximate to the southwest land border, the Gulf of Mexico, and the southern Pacific coast in California; and all maritime borders of the United States Virgin Islands and Puerto Rico.
Pass Christian, Miss., is a fine vacation destination, but not exactly an illegal-entrant hotspot, and while Puerto Rico sees its fair share of illegal migrants, it’s not going to challenge Lukeville, Ariz., for daily apprehensions anytime soon.
But at least somebody at DHS or the White House was paying attention, and if there were a huge seaborne migrant surge from Haiti or Cuba into south Florida and the Keys, those apprehensions should definitely count.
Limitations on Entry, and the Significant Exceptions Thereto. With math and geography out of the way, it’s time to focus on the law, that is, how those limitations on entry that kick in once that 2,500 per-day average is hit actually work.
There are 11 separate categories of individuals who are exceptions to those limitations, one of which (non-citizen nationals) does not actually include aliens at all.
Most are fairly mundane: green card holders are an exception, as are valid visa holders, active-duty military (ours) and their family members, visa-waiver nonimmigrants, and such. UACs, of course, are excepted.
The major exceptions (read: “loopholes”), are major indeed. They include the 1,450 aliens per day who preschedule their illegal entries at the ports using the CBP One app (under a policy I refer to as the “CBP One app interview scheme”) and any alien “determined to be a victim of a severe form of trafficking in persons”.
More ominous (or portentous) are the exceptions in sections 3(b)(vi) and (vii) of the proclamation.
Here’s the former:
any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the entry or encounter that warranted permitting the noncitizen to enter. [Emphasis added.]
That language is similar to but broader — and more expansive — than the statutory standard for parole under section 212(d)(5)(A) of the Immigration and Nationality Act (INA).
That provision grants the DHS secretary authority to allow otherwise inadmissible aliens to enter the United States on parole, but then tightly cabins that power, allowing the secretary to use it “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
Prior to the Biden administration, “urgent humanitarian reasons” commonly applied only where the alien required urgent medical treatment, and “significant public benefit” usually meant the alien was needed as a defendant or witness in criminal proceedings in the United States.
The Biden administration has ignored those limitations, in particular expanding the circumstances under which an alien’s parole would provide a “significant public benefit” to include any instance where DHS either lacked detention space or didn’t care to use the space it did have.
Worse, “significant law enforcement” and “officer and public safety” considerations could mean almost anything, such as waiving aliens in instead of denying them entry due a Border Patrol shift change. That none of those terms is otherwise defined does not instill any confidence that the Biden administration won’t cheat on its own entry limitations as it has on Congress’s parole limits.
And here’s the latter exception to the limitation rule, in section 3(b)(vii) of the proclamation:
any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter. [Emphasis added.]
Again, “operational considerations” is not otherwise defined, meaning it will likely become a catchall for any alien that DHS doesn’t want to expel.
As if to prove that point, the phrase is almost identical to “operational circumstances”, which has been the administration’s go-to excuse for explaining why it chooses not to comply with Congress’ detention mandates in section 235(b) of the INA and instead releases illegal migrants into the United States.
In other words, and while I’m not saying that this proclamation is only as good as the paper it is printed on, Biden’s DHS doesn’t have a strong track record of complying with the INA, and likely won’t hew too closely to what otherwise appear to be the remaining significant restrictions on migrant entries under the proclamation. These loopholes are just too wide, and poorly defined.
Asylum Restrictions, “Exceptions”, and the DHS Fact Sheet. While the word “asylum” appears 17 times in the proclamation, 16 refer to what the administration has already done in its May 2023 “Circumvention of Lawful Pathways” (CLAP) rule or to Congress’ alleged failures to fix the “broken immigration system”.
Only one time in the proclamation is usage of the term prospective, in section 3(d), which states:
The Secretary of Homeland Security and the Attorney General are authorized to issue any instructions, orders, or regulations as may be necessary to implement this proclamation, including the determination of the exceptions in subsection (b) of this section, and shall promptly consider issuing any instructions, orders, or regulations as may be necessary to address the circumstances at the southern border, including any additional limitations and conditions on asylum eligibility that they determine are warranted, subject to any exceptions that they determine are warranted. [Emphasis added.]
To expound on what that means, I turn to the DHS fact sheet.
It states that aliens who cross illegally while those limitations are in effect “will generally be ineligible for asylum, absent exceptionally compelling circumstances and unless they are excepted by the Proclamation”.
In other words, while a limitation is in effect, illegal entrants are barred from asylum. So far, so good — until you read further down the page and get to the “Exceptions”.
Those exceptions, not surprisingly, allow aliens who fall within the definition of “victim of a severe form of trafficking in persons” to apply for asylum notwithstanding the pendency of a proclamation limitation.
But then it includes two other groups: aliens who “faced an acute medical emergency” or had a family member who did; and aliens who “faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder”, or again had a family member who did.
Stabilizing a migrant who’s suffered a medical emergency makes sense; CBP won’t turn away a dying migrant, regardless of the circumstances. But there’s no reason such an acute condition should enable an alien who is otherwise ineligible to do so to seek asylum thereafter.
And, while I have sympathy for all aliens who face criminal threats in coming to the United States illegally, such threats are a deplorable but inevitable fact of life for migrants who put their lives in the hands of smugglers, a class of criminals whom — as then-Vice President Joe Biden explained in June 2014 — “routinely engage in physical and sexual abuse, and extortion”.
The logical response to such criminal predation is to deter aliens from entering illegally in the first place, not to provide them with greater incentives (release, work authorization) for doing so, but that is exactly what the administration has done to this point.
Perversely, this exception could encourage even more would-be migrants to accept such risks, with the understanding that if anything did go horribly wrong during that perilous trek, it’d be more likely that they’d be allowed to stay.
By the way, aliens who don’t fall within these exceptions are not forestalled from seeking benefits that would allow them to stay here. And it’s at that point that this whole process goes wildly off the rails.
Expedited Removal. I’ve explained expedited removal in the past, but briefly it’s a tool Congress gave border and port-of-entry officers in 1996 that allows them to deport illegal entrants without placing them into proceedings before an immigration judge and securing a removal order (which is usually required prior to deportation). Under expedited removal, Border Patrol agents and CBP officers can write that removal order themselves.
The exception to that quick deportation process pertains to aliens who claim a fear of harm if returned or expressly request asylum. CBP must send those aliens to USCIS asylum officers for what’s termed a “credible fear” interview at which the officer determines whether the alien may be eligible for asylum.
If the alien receives a “positive credible fear determination”, the alien is placed into removal proceedings to apply for relief. If not, the alien is removed.
Here’s how the fact sheet explains what will happen to such aliens in that expedited removal/credible fear process under the proclamation:
noncitizens who cross the southern border and are processed for expedited removal while the limitation is in effect will only be referred for a credible fear screening with an Asylum Officer if they manifest or express a fear of return to their country or country of removal, a fear of persecution or torture, or an intention to apply for asylum.
That essentially describes how expedited removal and credible fear are supposed to work. It suggests, however, that up until this point, Biden’s DHS has been referring all aliens subject to expedited removal to USCIS for credible fear interviews regardless of whether they asked for asylum or claimed a fear of return.
Now, however, aliens must expressly ask for asylum or specifically express a fear of harm in order to trigger an asylum-officer interview, at least while limitations are in effect.
Statutory Withholding and CAT. Because aliens who don’t fall within the exceptions are ineligible for asylum while a limitation is in effect, that credible fear interview will focus on whether such aliens qualify for withholding of removal under section 241(b)(3) of the INA (“statutory withholding”) and/or protection under the Convention Against Torture (CAT).
Statutory withholding is similar to asylum, in that it requires applicants to show some likelihood they’ll be persecuted if returned based on race, religion, nationality, membership in a particular social group, or political opinion.
The burden of proof is higher for statutory withholding than it is for asylum (“more likely than not” the alien will be persecuted, compared to a “well-founded fear” of persecution for asylum), and unlike asylum, statutory withholding doesn’t place the alien on a path to citizenship.
Similarly, by regulation, applicants for CAT must show it’s more likely than not they’ll be subject to torture “by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity” if they are returned.
International agreements require the U.S. government to offer those protections to aliens present here, so it’s not surprising that access to those protections is a de facto exception to expulsion under the proclamation. And because the burdens of proof for statutory withholding and CAT are higher than the asylum burden of proof, the asylum officer screening standard will also be higher.
The problem is that — up to this point, at least — the Biden administration has released nearly all illegal migrants with potential protection claims, even though the INA mandates their detention.
Those releases are driving the border surge, as a federal judge explained in March 2023, and nothing suggests such releases won’t continue under the proclamation. That means if an illegal entrant has been coached on what to say when apprehended to pass credible fear for statutory withholding and/or CAT (and most will be), the border crisis will continue regardless of the proclamation.
“Presidential Proclamation Addressing Mass Migration”. If all of this sounds familiar, it’s because the Trump administration did something similar — but much more effective.
On November 9, 2018, President Trump issued Presidential Proclamation (PP) 9822, “Addressing Mass Migration Through the Southern Border of the United States”, which suspended and limited entry into the United States by aliens who came after that date illegally, between the ports of entry.
That same day, DHS and DOJ issued a joint interim final rule (IFR), captioned “Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims”. That IFR barred aliens subject to PP 9822 — that is aliens who entered illegally between the ports of entry — from receiving asylum in the United States. That IFR has come to be known as the “Port of Entry rule”.
The IFR was quickly blocked in district court in California and then by the Ninth Circuit in a case I’ve discussed a lot of late, East Bay Sanctuary Covenant v. Trump.
PP 9822, like the Biden proclamation, was issued under the president’s authority in section 212(f) of the INA, a provision the Supreme Court held “exudes deference to the President in every clause”. It allows the president to “suspend the entry of all aliens or any class of aliens” if he finds that such entry “would be detrimental to the interests of the United States”.
Overly simplistically, the Ninth Circuit held — “deference” aside — that section 212(f) did not apply to illegal entrants because they had already entered the United States, albeit illegally.
In congressional testimony in March, I explained that this interpretation was effectively overruled by the Supreme Court in a later opinion, but for now East Bay Sanctuary is the law.
The Port of Entry rule didn’t have all the exceptions that the Biden proclamation rule includes, which is why it was more effective. But even the most effective restriction is futile if the courts block it, so the question now is whether Biden’s DOJ will vigorously fight the inevitable challenges immigrants’ advocates will bring.
Its track record, unfortunately, is not good, but perhaps Attorney General Merrick Garland will read the writing on the wall and vigorously appeal the restraining orders and injunctions lower courts will inevitably issue against these Biden asylum limitations. If he does, future administrations will be able to use that 212(f) authority to secure the border more effectively than this proclamation would.
The Good and the Bad. I should note that this proclamation, despite its loopholes and exceptions, will likely drive illegal entries down in the short run. Smugglers and would-be migrants hate uncertainty, and there’ll be plenty to go around, because much will depend on the speed and manner in which DHS implements this rule.
On the upside, this proclamation shows that the Biden administration finally realizes — likely for political reasons — that it can’t allow the chaos at the Southwest border to continue. On the downside, it’s likely too riddled with exceptions to do much good. In any event, it’s likely headed to the courts, where the real question will be not whether the rule is legal (it definitely is in my opinion), but whether DOJ will fight to implement it. On that score, I’m not optimistic.