The Washington Post reported this week that the Biden administration is weighing whether to establish “European-style reception centers along the Mexican border that would transform the way asylum seekers are processed”. The very idea of “reception centers” for people who enter illegally should be anathema to anyone who believes in border security, but in any event, it would cost a lot, require legislative changes, and will likely not do much good.
The Biden Administration’s Failure to Comply with Federal Border Law. By way of brief background, section 235(b) of the Immigration and Nationality Act (INA) requires DHS to detain all migrants apprehended entering the United States illegally. Immigrant advocates — many of whom staff the Biden White House — hate detaining “asylum seekers”, and consequently have honored that mandate in the breach, as the Post article makes clear.
Specifically, the paper explains:
About 500,000 to 600,000 of the 1.7 million border-crossers who arrived during the 2021 fiscal year were not expelled or deported by U.S. authorities, Customs and Border Protection statistics show. Many of those released into the United States were families and unaccompanied minors traveling without a parent.
As I have explained in the past, the Secure Fence Act of 2006 requires DHS to achieve “operational control” of the Southwest border, defined as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”.
Needless to say, the release of half a million illegal migrants into the United States violates that mandate. It is not like Biden had this requirement foisted upon him — as a senator, he voted for the Secure Fence Act of 2006 (likely for purely political reasons) but a deal’s a deal, especially when you are making that deal with the American people.
The UN’s Interest in the Biden Plan. You know who else hates immigrant detention? The United Nations, and it will likely be little comfort to many Americans to know that, according to the Post, “the U.N. refugee office in Washington ... has been in discussions with the Biden administration as it ‘engages in regular dialogue with and at the request of the U.S. government as it seeks to enhance its asylum system.’”
Given the fact that, according to DHS and DOJ, there are some 400,000 asylum applications pending adjudication before asylum officers at USCIS and an additional 610,000 awaiting adjudication in the immigration courts, there is little in the U.S. asylum system that requires “enhancing”.
There are, by my count, more than 30 member nations in the UN that have populations lower than just the number of aliens seeking asylum in the United States, from Djibouti (990,000) to Nauru (fewer than 10,900). Perhaps the UN recognizes that there is strength in numbers.
The “Reception Center” Proposal and the Opaque Verbiage in Support. What exactly will these “reception centers” look like? The Post explains that “operational details of the reception center model remain in flux”, but that: “Proponents of the model say it would allow migrant families to remain together in a non-carceral setting with access to recreation and educational programming, medical services, and legal counsel.”
In almost 30 years of legal practice, largely involved in the field of immigration, and despite my intimate knowledge of detention (both at the state and federal level, and strictly on a professional basis), I have never heard the word “non-carceral”. My Latin, however, is good enough to recognize that carcer is the masculine, third declension word for “prison” (the source of the English word, “incarcerate”).
Thus, I was able to make my way through this opacity and suss that “non-carceral” meant “non-detained”, and the Post revealed that I was correct. The article explains:
Asylum seekers housed at reception centers would not be technically detained, but would have incentives to remain at the sites and comply fully with the adjudication process. Some versions of the program would allow migrants to come and go during the day, or rely on the electronic monitoring tools used by U.S. Immigration and Customs Enforcement’s Alternatives to Detention [ATD] programs.
If I had access to free medical care and lawyers (and almost definitely three meals a day and a place to sleep), I might be inclined to stick around for some period voluntarily, especially if I could come and go as I pleased. That such a system would likely attract more illegal migrant “asylum seekers” than it dissuades hardly requires analysis, especially given the fact that a green card is in the balance.
The same goes for ATD, which sounds great in the abstract but really doesn’t work so well in the concrete. The Post cites to “ICE data”, which reveals that 33 percent of aliens in ATD absconded in FY 2020 — though that seems a little low to me.
Even if those aliens comply with ATD while they are applying for asylum, though, the program does little to ensure that they will leave.
In fact, in its FY 2019 operations report, ICE Enforcement and Removal Operations (“ERO”, the folks who detain and remove aliens) explained that “while ATD can complement other immigration enforcement efforts when used appropriately on a vetted and monitored population of participants, the program was not designed to facilitate ERO’s mission of removing aliens with final orders.”
The Biden Plan Requires Amending the INA and Some New Regulations. Putting aside the question of how DHS can vet an alien who has recently arrived illegally, the bigger problem is that neither a “non-carceral setting” nor ATD are, by definition, “detention”, and detention is what the INA mandates.
That means that this Biden administration proposal will require either a statutory change, or alternatively blatant avoidance of Congress’s mandates in the INA. Given the fact that the Biden administration has ignored the “operational control” requirement, it likely has few qualms about ignoring the detention one, either.
That is not the only fix that the White House would have to implement to get this plan off the ground.
As I have explained many times in the past, thanks to a 2015 district court order in Flores v. Lynch, ICE is required to release all migrant children who enter the United States illegally with an adult in a “family unit” within 20 days.
That order, and the settlement agreement on which it is based, are supposed to end 45 days after DHS issues regulations that achieve the goals of the latter, i.e., the terms of detention and release of alien children, but originally thought of only applying to the “unaccompanied” sort. Trump tried to implement so-called “Flores” regulations in August 2019, only to get shot down by the same district court judge shortly thereafter, a decision affirmed by the Ninth Circuit last December.
The Biden administration has thus far failed to promulgate its own Flores regulations, and in fact, it recently dropped the only sections of Trump’s regulations that the Ninth Circuit had allowed to stand (which applied to the Department of Health and Human Services).
CBS News has reported that the Biden administration is working on its own Flores regulations, and this “reception center” scheme is likely part of that plan.
If it’s not, however, the whole plan is akin to “Schrödinger’s detention”, in which illegal migrants are both detained (to comply with section 235(b) of the INA) and not detained (to satisfy Flores) at the same time. That said, the only thing that the Flores regulation could do would be to allow the detention of all aliens in family units in accordance with the INA, but “non-carceral detention” is a contradiction.
The Plan Would Costs Billions Annually. Then, there is the cost, which the Post admits “would be considerable”. That’s an understatement.
ICE currently operates three “Family Residential Centers” (FRCs), which house 2,500 aliens in family units daily at a projected cost of $270 million for FY 2022.
Those FRCs are the closest current model to what the Biden administration appears to have in mind, as aliens are putatively free to leave (they would likely have to answer some questions, however).
Few if any do leave, however, given the fact that FRCs are in the middle of nowhere, and that they provide room and board, medical care, access to lawyers, and education for free (for them, not you).
In just the month of October alone, however, Border Patrol agents apprehended nearly 43,000 aliens in family units who had entered illegally — 17 times as many aliens as ICE has family beds. If those FRCs were expanded, therefore, costs would top $4.59 billion annually — nearly the entire budget of Biden’s home state of Delaware ($4.7 billion for 2022).
The Post states that it is “unclear” where that money would come from but asserts that “some administration officials who support the idea believe it would appeal to moderate Republican lawmakers frustrated with the dysfunction of the U.S. asylum system.”
There is no doubt that an asylum system with more applicants than Djibouti’s total population is “dysfunctional”, but it would be a lot cheaper to simply follow a recommendation by my colleague Mark Krikorian: Ditch the current asylum system altogether and just give refuge to those who we already know are truly deserving (though I am still on the fence about the idea).
Would “Non-Carceral Reception Centers” Receive Republican — or Progressive — Support? That said, however, given the Biden administration’s refusal thus far to enforce the immigration laws at the border or in the interior, how many “moderate Republicans” does the president really expect to buy into this idea, let alone pay for it?
That is likely the biggest problem with the administration’s nonenforcement regime. You can watch DHS Secretary Alejandro Mayorkas’s recent Senate testimony and see the Republican members’ frustration at his responses about what is going on at the border. Would you buy UN-supported “non-carceral reception centers” for hundreds of thousands of illegal migrants from this man if you were them?
More mundanely, however, Republicans see the president’s weakness on immigration and the border as a winning issue for the GOP heading into the 2022 mid-term elections. They don’t have to worry about Democratic threats to pack the Supreme Court, or efforts to ram through massive social hand-outs through party-line votes on reconciliation, or attempts to “federalize” local elections if they run the place.
The best rule in politics is to get out of the way while your opponent is self-destructing, and the White House has given the GOP little reason to do otherwise when it comes to immigration.
Of course, the president could pull a rabbit out when it comes to GOP support for this plan, but any proposal that would garner enough “moderate Republican” votes would likely risk alienating the “progressive” wing of the Democratic party.
There is a reason that nonsense words like “non-carceral” are being thrown around when European-style, UN-approved border “reception centers” are being discussed. Leading progressives, as noted, hate immigration detention. There is a reason DHS is asking for fewer detention beds in the FY 2022 budget than it had when Biden took office.
Will the Biden Administration Overreach? The ultimate success of this proposal depends on several factors.
The first is the ultimate outline of what “non-carceral reception centers” look like. The phrase “the devil’s in the details”, may be trite, but it’s apt in this case.
The second is whether the Biden administration pushes forward on its proposal to completely revamp asylum adjudications at the border by allowing asylum officers to adjudicate illegal migrants’ asylum applications, and by giving itself the authority to “parole” every illegal migrant it lacks authority to detain (instead of returning them to Mexico to await their asylum hearings before immigration judges).
The Center submitted comments largely opposing that proposal, but the Post reports that it “is expected to launch next spring and could work in concert with the reception center model”. Asylum grants would almost definitely skyrocket as a result (as explained in those comments), and that could cool any ardor among the Republican conference to sign $4.7 billion checks to fund “reception centers”.
The third, related factor has to do with a long-awaited administrative proposal to expand asylum eligibility by including aliens who have been the victims of common criminality in their home countries, as detailed in section X of the Center’s regulatory comments.
Not only would that greatly expand the number of aliens who receive asylum (which places them on a path to citizenship), but it would also provide strong incentives for millions of new foreign nationals to enter the United States illegally.
The latter two plans would undermine any improvements in border security that those “reception centers” could possibly provide. If aliens are not actually detained in those centers, however, they will do little to nothing to stem the ongoing historically large surge of migrants to the United States. They would simply become rest stops (with free medical care) for aliens waiting for a ride into the interior.
Conclusion. The Biden administration has not been shy in overreaching on its immigration proposals in the past, but any expansion of asylum eligibility would almost definitely spur a backlash. “Non-carceral”, UN-approved, and European-inspired “reception centers” for illegal migrants would simply become poster children for the Biden administration’s non-enforcement regime.
Before it “reimagines” border enforcement and asylum eligibility in the United States, the Biden administration would do well to simply enforce the immigration laws we already have.