- DHS has a statutory duty to detain aliens who have entered illegally.
- Because the Biden administration ended Trump-era policies that successfully deterred illegal entries, the number of migrants apprehended at the Southwest border has soared, and now exceeds DHS’s detention capacity.
- Despite this fact, the president now wants to cut DHS’s capacity to detain illegal migrants.
- In failing to request more detention space or instead adopt its own policies to deter illegal migration, the administration has acted incompetently, and now seeks to compensate for its incompetence by expanding its power to parole aliens far beyond the limits set by Congress in the INA.
- DHS has apparently apprehended so many aliens who pose a threat to the national security and public safety that it now must prioritize which ones to detain.
On August 18, I outlined the Biden administration’s latest proposal to make the disaster at the Southwest border even worse by expediting the release of illegal migrants and making it harder for DHS to remove them. Sadly, I must conclude that this policy is an attempt to hide the Biden administration’s incompetence in failing to secure the border — though some may take an even dimmer view.
As I explained in that post, those proposed rules would all but ensure that aliens who have entered illegally and claimed a fear of harm are released into the United States, in direct contravention of the black-letter language of the Immigration and Nationality Act (INA). It mandates those aliens be detained until they are either granted asylum or other immigration relief, or removed.
DHS contends that it has the authority to release those aliens under the general parole authority in section 212(d)(5)(A) of the INA. In this context, to “parole” means to free an alien seeking admission to the United States from immigration custody. As a review of that provision reveals, however, DHS’s parole authority is extremely limited.
Specifically, that section of the INA explains that the department may parole an alien “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. As that “case-by-case basis” language shows, Congress did not give DHS blanket authority to release any group of aliens it sees fit on parole.
Despite that, DHS wants to grant itself by regulation the broad parole authority Congress explicitly denied it by statute. Specifically, the regulations that DHS has proposed would allow it to parole, as a group, aliens for whom “detention is unavailable or impracticable”.
Respectfully, if DHS has apprehended so many aliens at the border that their detention is “unavailable or impracticable”, the administration needs to do two things: (1) Find more detention space and/or (2) change its border policies to dissuade aliens from coming to the United States to begin with.
Detention space is a function of resources, and resources are dependent on congressionally appropriated money.
If it believes that it does not have enough money to comply with the statutory detention mandate, the Biden administration needs to request more funding from Congress to ensure that ICE (which detains aliens apprehended at the border) has the beds it needs to detain inadmissible “applicants for admission” (including illegal migrants).
Surprisingly, however, the president is doing the exact opposite. His FY 2022 budget requests funding for 30,000 ICE detention beds per day, 1,500 fewer than were appropriated for this fiscal year (although even that cut did not satisfy immigrants’ advocates).
That request is actually worse than it appears, however, given the demographics of the ongoing border disaster.
Last month at the Southwest border, Border Patrol agents apprehended more than 76,000 adults and children travelling in “family units” (FMUs), an average of 2,453 per day. The president’s budget request for FMU detention? It’s for 2,500 beds per day.
That means that the administration wants enough beds to house aliens apprehended entering illegally in family units for just under one day and six hours. That would not even be enough time to get them travel documents and a ticket out of the United States.
Thus, under the proposed regulations, detention space for the vast majority of migrants in family units would be “unavailable and impracticable”, and they would have to be released.
The most prominent of those policies was the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”). It was effective, as DHS itself found in an October 2019 assessment of the program where it explained: “MPP has been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.”
In fact, the demonstrated effectiveness of MPP was one of the main reasons that U.S. District Court Judge Matthew Kacsmaryk blocked DHS’s attempt to terminate the program in an August 13 decision.
New administrations are free to jettison policies implemented by their predecessors of course, so long as they have new policies that are equally, if not more, effective.
The Biden administration has failed to do so, however. Ask yourself: What single new policy has the Biden administration implemented to decrease the number of migrants entering illegally? There are none.
It can rescind policies, as I have explained above, but it seems chronically unable to implement new ones that are effective in any way. At worst, that’s malfeasance, but I will give the administration the benefit of the doubt and assume it’s simple incompetence.
That incompetence is why Border Patrol has had to apprehend more than 1.276 million migrants who entered illegally at just the Southwest border this fiscal year (with two months to go), a total that has already exceeded that component’s nationwide total apprehensions for any year since FY 2000.
Of course, its own incompetence is not the justification that the administration is offering for its proposal to exceed its statutory authority in order to skirt the congressional detention mandate. Instead, it asserts, it must do so to allow it “to prioritize use of its limited detention bed space to detain those [aliens] who pose the greatest threats to national security and public safety”.
In this context, the phrase “threats to national security” means terrorists and spies, and “threats to public safety” is equivalent to aliens with highly contagious diseases, criminals, and gang members.
That is an unusual admission, because one of the most commonly heard assertions by open-borders advocates is that most if not all of the migrants entering illegally are “asylum seekers” who are simply looking for a better life. Apparently, there are some terrorists, spies, MS-13 members, and felons in the group, too.
And if the Biden administration has decided to start detaining aliens with highly contagious diseases, it’s high time, because as I explained in an August 14 post, the CDC has admitted that CBP has been releasing aliens without testing them for Covid-19. Perhaps it’s going to start.
That said, however, if the Biden administration’s policies are encouraging so many criminals, terrorists, and aliens with highly infectious diseases that it must prioritize which ones it detains (note its use of the words “greatest threats”, suggesting that it is has to choose which ones it holds), its failure to change those policies to prevent illegal entries is either incompetence or malfeasance.
So again, to give the president the benefit of the doubt, I will go with incompetence.
Of course, if I’m wrong, and the president is deliberately not enforcing the immigration laws at the border, he is violating his oath of office and the “Take Care Clause” of the Constitution. As U.S. District Court Judge Andrew Hanen noted in finding that the DACA program was illegal in a July 16 order, however, there is “a dearth of precedent on the Take Care Clause”.
Both Judges Kacsmaryk and Hanen interpreted the standing of states to challenge the Biden administration’s immigration policies quite broadly (in accordance with Fifth Circuit precedent), however, meaning that states will likely sue (successfully) if the administration’s proposal to expand DHS’s parole authority beyond its statutory bounds becomes the law.
The judges who receive those cases might not be as charitable as I have been in assessing the president’s motives in taking actions that have resulted in the entry of a historic number of illegal migrants this fiscal year. That means that there may not be “a dearth of precedent on the Take Care Clause” for long.
I will not cast such aspersions, however, leading me to the following conclusion: DHS has a statutory duty to detain aliens who entered illegally. Because the Biden administration ended Trump-era policies that successfully deterred illegal entries, the number of migrants apprehended at the Southwest border has soared and exceeds DHS’s detention capacity, which the president now wants to cut. In failing to request more detention space or instead adopt policies to deter illegal migration, the administration has acted incompetently, and now seeks to compensate for its incompetence by expanding its power to parole aliens far beyond the limits set by Congress in the INA.