The Biden administration released its latest plan to funnel illegal migrants into the United States, summarized in a fact sheet inaptly titled “Biden-Harris Administration Announces New Border Enforcement Actions” because there’s little “enforcement” in it. My colleagues will be analyzing the massive (and illegal) “parole” for up to 360,000 aliens per year included in the plan, but I just wanted to quickly translate a few of the White House’s proposals into English.
Current Law. When aliens are apprehended entering the United States illegally, DHS has two choices on how to process them: (1) expedited removal under section 235(b)(1) of the Immigration and Nationality Act (INA); or (2) “regular” removal under section 235(b)(2) of the INA.
Expedited removal is exactly what it sounds like: A fast-track process by which aliens who have no documents allowing them to be admitted (including illegal entrants) are quickly removed.
The defect in that fast-track process is the requirement that aliens who have asserted a fear of harm or who have expressly requested asylum are to be sent to an asylum officer from USCIS to determine whether they have a “credible fear” of persecution.
Credible fear is a screening process to determine whether the alien may be eligible for asylum, and consequently the standard for credible fear is low: “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.
That defect would not be fatal were it not for a decision made under the Obama administration in December 2009 to release on parole aliens who had received positive credible fear determinations from an asylum officer.
That directly contravened a requirement in section 235(b)(1) of the INA that aliens subject to expedited removal be detained, from the moment that they are apprehended until they are either granted asylum or removed.
Up until FY 2010 (the fiscal year in which that Obama parole directive was issued), only about 5 percent of aliens subject to expedited removal claimed a fear of harm or requested asylum. In FY 2010, that rose to 7 percent, then to 15 percent in FY 2013, 25 percent in FY 2015, and 39 percent in FY 2016.
Would-be illegal migrants — and more importantly their smugglers — realized that a credible fear claim was a “quick ticket” to entry into the United States, particularly given that the credible fear standard was low and that the rate at which asylum officers issued positive credible fear determinations (81 percent between FY 2008 and the fourth quarter of FY 2019) was consequently sky high.
By the time Trump took office in FY 2017, 44 percent of aliens subject to expedited removal were claiming credible fear, a figure that climbed to 48 percent of the more than 178,000 aliens in expedited removal proceedings by FY 2018. Trump at that point could not detain the more than 65,000 aliens who had received positive credible fear determinations, and so he could not reverse the Obama-era release policy.
Remain in Mexico. So Trump did the next best thing, and began processing illegal entrants through regular removal proceedings under section 235(b)(2) of the INA. That provision also mandates that illegal entrants be detained until they are granted asylum or removed, but it contained a critical relief valve.
That relief valve, in section 235(b)(2)(C) of the INA, permits DHS to return aliens who have entered illegally back across the border to await their removal proceedings. That was the basis for Trump’s Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.
MPP was a success, and in an October 2019 assessment of the program DHS determined that it was an “indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as applied to adults entering illegally with children in “family units”. Asylum claims were expedited, and aliens with weak or bogus claims simply returned home.
“Indispensable” or not, then-candidate Joe Biden derided MPP and the rest of Trump’s border policies, vowing on his campaign website to end them if elected.
Which he did. DHS issued an announcement on inauguration day suspending new enrollments in the program, effective January 21, 2021. Three weeks later, the department stated that it would begin processing the 25,000 migrants who remained in Mexico under the program into the United States.
That prompted the states of Texas and Missouri to push back, filing suit in federal court in Texas two months later to force DHS to keep Remain in Mexico in place. That case (Texas v. Biden) has since been bouncing around the federal judiciary, from district court to the Supreme Court and back again.
Since Texas has been ongoing in the courts, DHS Secretary Alejandro has terminated MPP twice, though most recently the district court judge hearing the case issued an order on December 15 staying the second of those MPP terminations. That said, no alien has been returned pursuant to MPP since August, when 151 illegal migrants were subject to Remain in Mexico.
“New Border Enforcement Actions”.The reason why DHS is apprehending illegal entrants at record numbers at the Southwest border (206,000-plus in November alone, even while more than 73,000 others evaded Border Patrol agents and made their way into the United States) is expressly because Biden quickly ditched MPP and Trump’s other successful border policies while at the same time releasing more than 1.5 million illegal migrants into the United States.
Border Patrol agents released more than 105,000 illegal migrants they had apprehended at the Southwest border in just the month of November. If the administration wanted to actually secure the border, it would either reimplement MPP or detain illegal entrants. Its “New Border Enforcement Actions” do neither.
Instead, Biden is attempting to hide the scope of the border disaster by playing a shell game.
Aliens who would have entered illegally will now be able to access “the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait”. My colleague Todd Bensman revealed the existence of this program back ion November.
The administration claims that this plan will allow aliens “to enter the United States lawfully through” those ports of entry, but in reality “entering” without a visa through a port of entry is as “illegal” as crossing the border without a visa between the ports of entry, regardless of whether you have an appointment to do so.
The administration also asserts that it will “Impose New Consequences for Individuals who Attempt to Enter Unlawfully”, which sounds great until you realize that those “new consequences” are nothing more than “expedited removal” — an authority, as explained above, that Biden’s always had.
But one that he’s hardly ever used. Of the more than 141,000 aliens apprehended by the Border Patrol at the Southwest border in November who were not expelled under Title 42, for example, fewer than 6,500 — 4.6 percent of the total — were subject to expedited removal. If that were the silver bullet, why hasn’t DHS used it up to this point?
Though to be fair, expedited removal would staunch the migrant flow, but only if the administration is willing to ask Congress for detention funding and detain all illegal entrants. It won’t.
Detention and MPP are both deterrents to illegal entry, and such deterrence is at the heart of border security. The problem is that Biden’s is the first administration in history that has rejected deterrence as a border policy. Worse, this administration tried — unsuccessfully — to prosecute Border Patrol agents who attempted to stop migrants from entering illegally. And you can see the results daily at the Southwest border.
With the advent of Republican control in the House of Representatives, the administration will no longer be able to hide from the humanitarian disaster it has created at the Southwest border. Biden’s plainly desperate, which is why he’s rolling out “new” proposals now. But the new policies will be as ruinous as the old — if not more so.