On March 8, I analyzed a decision from federal district court Judge Keith Wetherell in Florida v. U.S. Judge Wetherell vacated various parts of the Biden administration’s catch-and release policies at the Southwest border, revealing that DHS was handling its migrant surge by ignoring key requirements of the Immigration and Nationality Act (INA). It’s not the only place the administration is managing an immigration disaster it created through some shady means — it’s doing it in the courtroom, too.
At the Border. In section 235 of the INA, Congress laid out the process CBP officers at the ports and Border Patrol agents between the ports are supposed to follow in inspecting alien applicants for admission — a category that includes migrants apprehended entering illegally.
For aliens who entered illegally, or who don’t have documents entitling them to be admitted to the United States, or who attempted to enter via fraud, CBP may utilize the “expedited removal” provisions in section 235(b)(1) of the INA, which allows agents and officers to remove such aliens without placing them into removal proceedings before an immigration judge (IJ).
Aliens whom CBP determines are “not clearly and beyond a doubt entitled to be admitted” pursuant to the other grounds of inadmissibility — and aliens who could otherwise have been subject to expedited removal, but weren’t — are, under section 235(b)(2) of the INA, supposed to be placed into “standard” removal proceedings under section 240 of the INA before the immigration court.
Those removal proceedings commence with the filing of a Notice to Appear (NTA), the statement of charges in removal proceedings, which are akin to indictments and complaints in criminal cases.
Regardless of whether CBP opts for expedited or standard removal, however, section 235(b) of the INA mandates that all inadmissible applicants for admission (including, again, illegal migrants) be detained — from the moment they are “encountered” by CBP to the point at which they are found not to be inadmissible, or granted “relief” from removal (usually asylum), or removed.
DHS does have very limited authority, however, to “parole” inadmissible aliens, which in this context serves to allow those aliens to enter the United States without being formally admitted.
That parole authority is extremely limited, however. Section 212(d)(5) of the INA allows DHS to parole inadmissible aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.
What’s more, the parole statute contemplates that those aliens be placed into removal proceedings before they are released from custody on parole, and requires that they be taken back into custody when the purposes of the parole “have been served”.
That’s how the inspections process under section 235 of the INA is supposed to work. It’s nothing like how DHS under the Biden has been proceeding, however.
The administration believes it has virtually unfettered discretion to ignore the section 235 inspection system Congress has created and proceed however it chooses.
And to this point it has chosen to simply serve hundreds of thousands of illegal migrants with NTAs and release them on their own recognizance or on “conditional parole” under its general arrest and release authority in section 236(a) of the INA. Conditional parole is not subject to the requirements in section 212(d)(5) of the INA.
There are two problems with DHS releasing border migrants on their own recognizance or conditional parole. First, as noted, section 235(b) of the INA requires them to be detained.
Second, section 236(a) of the INA doesn’t apply to border migrants. It only applies to aliens who have been arrested “[o]n a warrant”, and illegal entrants don’t check in ahead of time so agents can prepare warrants in advance (logically). Those encounters are “warrantless” arrests under section 287(a)(2) of the INA.
Apparently, Biden’s DHS has been slipping “administrative warrants” into migrants’ A-files when it releases them to avoid this statutory dilemma, but as Judge Wetherell put it, “This sleight of hand — using an ‘arrest’ warrant as de facto ‘release’ warrant — is administrative sophistry at its worst.”
At least Biden’s DHS is attempting to act like it’s complying with the INA in its section 236(a) releases. When it comes to releasing migrants on parole, it’s not even trying.
The judge’s opinion in Florida reveals that CBP is only spending about 15 to 30 minutes per alien in its border parole release cases, which is nowhere near enough time to comply with the statutory “case-by-case” standard, let alone to determine whether releasing any given alien on parole is justified by “urgent humanitarian reasons or significant public benefit”.
Instead, as the court in Florida found, a July 2022 memo that contains DHS’s most recent iteration of its border release policy “turns the parole standard on its head by providing ineligibility criteria rather than eligibility criteria”, and “essentially establishes a presumption of parole when the relevant ‘triggers’ are met”.
The reason CBP is releasing some aliens on parole under section 212(d)(5) in lieu of on conditional parole or their own recognizance under section 236(a) is that — the way the Biden administration is doing it — paroles are quicker, because agents don’t have to prepare and serve NTAs on the aliens it paroles. It can just shoo them out the door and move on to the next illegal migrant.
Of course, that means that there’s no “case” for the migrant to return to once DHS terminates those aliens’ parole (again, as the statute requires), but that’s not even the worst part. It’s not even planning to take the aliens it paroles back into custody once it terminates their paroles, in clear derogation of the parole statute. They check in with ICE, get their NTAs, and are free to go back to the streets.
But even that’s not the worst part of Biden’s July 2022 parole scheme.
In concept, after CBP releases those aliens on parole, ICE rapidly calls them in, quickly issues them NTAs, and promptly places them into removal proceedings. Dream on.
As Judge Wetherell found, ICE is overwhelmed in calling in and issuing NTAs to the hundreds of thousands of migrants CBP has released on parole at the border that “for every 90 days” this parole policy continues, it “creates a backlog that takes 5.5 years and $49 million to clear”.
Thus, even if the administration’s parole policy ended tomorrow, it could be 2034 or later before DHS places those migrants into removal proceedings — even assuming ICE can locate them by that point. Essentially, the Biden administration is treating its disaster at the border the same way numerous administrations have treated the budget deficit — as some future president’s problem.
The Courts. This laissez-faire attitude toward the INA at the border has carried over to removal proceedings in the immigration courts.
ICE trial attorneys represent the government in those courts, and I have written extensively in the past about the deleterious effects on our system of justice of an April 2022 memo issued by Kerry Doyle, that agency’s principal legal advisor (“PLA”, ICE’s de facto general counsel), directing her lawyers to tank removal cases the Biden administration doesn’t consider “priorities” for enforcement.
There are only three categories of removable aliens the Biden administration considers enforcement priorities: threats to national security (terrorists and spies); threats to public safety (“typically because of serious criminal conduct”); and threats to border security (aliens who entered the United States illegally on or after the arbitrary date of November 1, 2020).
The immigration courts fall under the jurisdiction of the Executive Office for Immigration Review (EOIR) within DOJ, and a review of DOJ’s statistics reveals that my worst fears have been realized.
At the end of FY 2022, there were more than 722,000 asylum cases pending before the immigration courts, an unconscionably large backlog considering that there are fewer than 640 IJs to hear them.
In FY 2022, however, those IJs issued more than 157,000 decisions in asylum cases. That appears to truly be yeomen’s work.
Until you get into the statistics themselves. Of those 157,000-plus asylum decisions, fewer than 22,400 were grants (14.17 percent) and more than 26,000 (16.77 percent) were denials. That accounts for less than a third (fewer than 31 percent) of those decisions. What happened to the rest?
Just over 20,000 of those “asylum decisions” (12.76 percent) were cases that were “administratively closed”, essentially shelved indefinitely for the courts to worry about at some point in the future.
And when I say, “in the future”, I mean wayyyy in the future, more than a decade from now. Biden’s DOJ has stopped posting statistics on cases that have been administratively closed, but when it last did (in January 2022), “the average length of time a case [had] been administratively closed [was] 6,199 days (approximately 17 years)”. Many aliens will die before their cases are ever recalendared.
That still leaves more than half of those “asylum decisions” unaccounted for. A whopping 88,650 — 56.3 percent of the total — fall within a nebulous category captioned “other”.
As DOJ helpfully explains: “Asylum Others have a decision of abandonment, not adjudicated, other, or withdrawn”. That’s partially Mobius loop logic (“[o]thers have a decision of ... other”), but I think I can interpret the rest.
“Abandonment” likely refers to aliens who simply failed to show up in court. In that situation, the IJ is required to issue an in absentia order of removal, and in fact, IJs ordered more than 62,000 alien respondents ordered removed in absentia in FY 2022 (something to think about the next time you’re told nearly all aliens show up in court).
I have been told anecdotally, however, that trial attorneys have been advised not to seek in absentia orders for border migrants who have failed to appear — an issue Congress may want to check out.
“Not adjudicated” likely refers to cases that ICE trial attorneys have dropped under the Doyle memo, yet another ground for congressional inquiry if members see fit. The “withdrawn” are cases alien respondents have themselves asked IJs not to consider, but I have no idea how many IJ “asylum decisions” would fall within that category, given the administration’s current immigration posture.
In any event, let me clue you into something as a former trial attorney and IJ myself: Alien respondents with valid asylum claims don’t want their cases either “administratively closed” or “not adjudicated”. They want to be granted asylum, with all of the benefits (including the ability to immigrate immediate family members) that comes with such status.
Thus, it appears that the Biden administration is dealing with its massive and growing immigration court backlogs by either shelving or tanking tens of thousands of cases annually. That’s not what the INA requires, however, or what justice demands.
Not that it does much for the aliens themselves. With the exception of lawful permanent residents who are applying for asylum as relief from removal on criminal grounds (who get to keep their green cards until they receive final removal orders), the rest have no status until IJs rule on their cases. They don’t have to leave, of course, but they are in “legal limbo”, possibly forever.
Kicking the Can into the Sunset. Immigration enforcement under the INA can be a difficult task, but it’s one that gets a lot easier when the president couldn’t care less what Congress says. And, at the moment at least, the president has little if any regard for Congress’ INA mandates, either at the border or in the immigration courts. It’s not “kicking the can” down the road — it’s kicking it into the sunset, all to hide the doleful consequences of its feckless immigration policies.