Biden’s Border Policies Have No ‘Limiting Principle’ to Control Illegal Entries

And that’s a big problem. Either the policies will give way, or the country will.

By Andrew R. Arthur on December 8, 2023

During an appearance with host Poppy Harlow on CNN this week, DHS Secretary Alejandro Mayorkas suggested that certain proposals being made by Senate Republicans in negotiations over Ukraine funding – like asylum reform and limiting the parole power – would do “violence to our fundamental principles”. Mayorkas never identified the “principles” in question, but his statement raises a larger and more important point about President Biden’s immigration policies: they have no “limiting principle” that would control the number of aliens who can enter. That’s a problem for the White House and the American people, because either those policies will give way, or the country will.

The Wall Cutters

The best evidence of this point is physical: smugglers who are currently cutting through the barriers erected to prevent the entry of illegal migrants, drugs, and other contraband at the Southwest border. 

So-called “walls” were a cornerstone of Donald Trump’s 2016 campaign (“wall” was shorthand for his immigration promises), and so almost reflexively, Democrats – even ones who had previously voted for border barrier construction – derided the effectiveness of such barriers.

One of those Democrats was then-candidate Joe Biden, who on his campaign’s immigration website asserted: “A wall is not a serious deterrent for sophisticated criminal organizations that employ border tunnels, semi-submersible vessels, and aerial technology to overcome physical barriers at the border–or even for individuals with a reciprocating saw.”

In the run-up to that election, I called into question much of that statement, and the saw point in particular: 

Respectfully, the former vice president doesn't appear to understand what those barriers are for, nor does he apparently understand what that 18- to 30-foot bollard fencing actually looks like.

He uses the term "deterrent" above when I believe he means to say "impediment". If a barrier were not a "deterrent", a criminal organization ("sophisticated" or otherwise) would not go to the trouble and significant expense of digging tunnels, buying semi-submersible vessels, or employing "aerial technology" to conduct their business.

. . .

Which brings me to the "reciprocating saw" canard. Good luck making quick work of cutting through enough concrete-reinforced steel bollard fencing to get through quickly enough to avoid Border Patrol agents.

Thanks to the cameras, aerostats, and sensors that are used in conjunction with barriers, agents will likely know someone is schlepping a nine-pound piece of equipment to the fence long before they can make the first cut, and definitely before they could finish the job. Barriers are erected on the U.S. side of the border, meaning our hypothetical saw bearer would have to enter illegally to begin with, get to the fence, and finish work before he or she gets caught. It could happen, but likely won't.

 That critique aged fast, but mainly because I had no idea in October 2020 that President Biden would be pulling the Border Patrol agents that I referenced off the line to process and release aliens, meaning that they’d be unavailable to stop the saw-wielding smugglers.

If you want to see the results, consider the following Tweet this week from Rodney Scott, Biden’s first Border Patrol chief : 

Simply put, candidate Joe Biden argued that “walls” would not “seriously” deter smugglers, and then as president he implemented policies that made that argument come true.

“Violence to Our Fundamental Principles”

In addition to additional fencing, Harlow referenced other specific proposals that are reportedly being demanded by Republican Senate negotiators in exchange for $61 billion in funding for Ukraine, including limits on asylum and a narrowing of the “president’s” power to release inadmissible aliens (including illegal migrants) on parole (that power is actually exercised by the DHS secretary).

It was those latter two demands that Mayorkas was alluding to in asserting that the GOP’s demands would do “violence to our fundamental principles”. The secretary continued: 

We've presented proposals that address the situation, that provide real practical solutions and also do not do violence to our fundamental values. We are a country of refugees. We do have asylum laws. We do have refugee laws. We abide by our international obligations that are longstanding . . . 

 That latter part of Mayorkas’ statement encapsulates the Biden administration’s prime immigration directive and the fundamental flaw in its policies – its conclusion that any effort to deter aliens from entering illegally and applying for asylum would “do violence to our fundamental principles” and “international obligations”.

Deterrence and Consequences

The problem is that deterring aliens, including would-be asylum applicants, is and long has been a key element of border security. As The Atlantic explained in June: 

Prevention through deterrence has been a staple of U.S. border policy since the mid-1990s. Before that point, immigration control had largely been focused on catching unauthorized crossers after they’d reached the U.S. This new strategy was focused on changing migrants’ incentives before they ever left their homes.
. . . . 
The 1994 Border Patrol Strategic Plan aimed to “control the borders of the United States between the ports of entry, restoring our Nation’s confidence in the integrity of the border.” One assumption was that “alien apprehensions will decrease as Border Patrol increases control of the border.” The agency laid out what success would require: “The deterrent effect of apprehension does not become effective in stopping the flow until apprehensions approach 100 percent of those attempting entry … We believe we can achieve a rate of apprehensions sufficiently high to raise the risk of apprehension to the point that many will consider it futile to continue to attempt illegal entry.”

Consequences imposed after apprehension dovetail with that deterrence strategy. Congress included a provision in the National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017) captioned “Border Security Metrics” (section 1092) to measure the effectiveness of what it termed CBP’s “Consequence Delivery System”.

Section 1092 of NDAA 2017 is now codified at 6 U.S.C. §223, and paragraph (a)(2) therein defines the term “consequence delivery system” as “the series of consequences applied by U.S. Border Patrol in collaboration with other Federal agencies to persons unlawfully entering the United States, in order to prevent unlawful border crossing recidivism”.

That definition is almost quaint in the Biden border policy context. That’s because “recidivism” is, as I have explained in the past, “the serial illegal entry of aliens who have been apprehended and expelled”. “Expelling” illegal migrants isn’t been high on the list of the administration’s priorities, especially since Title 42 – which mandated the expulsion of illegal entrants – expired on May 11

EO 14010 

On February 2, 2021, President Biden issued Executive Order (EO) 14010, “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border”.

That EO directed the CDC (which had issued those Title 42 orders in response to the Covid-19 pandemic) to “promptly review and determine whether termination, rescission, or modification of” Title 42 was “necessary and appropriate”. The country was then just beginning to come out of its Covid-19 shutdowns, which may raise the question in retrospect why –12 days after he was sworn in –the new president wanted to end a tool intended to stem the introduction and spread of the coronavirus.

That EO did not directly answer that question, but if you read it in whole, the answer quickly becomes clear in section 1, captioned “Policy”, where the president stated: 

The United States is also a country with borders and with laws that must be enforced. Securing our borders does not require us to ignore the humanity of those who seek to cross them. The opposite is true. We cannot solve the humanitarian crisis at our border without addressing the violence, instability, and lack of opportunity that compel so many people to flee their homes. Nor is the United States safer when resources that should be invested in policies targeting actual threats, such as drug cartels and human traffickers, are squandered on efforts to stymie legitimate asylum seekers. [Emphasis added.]

 Because Title 42 expulsions “stymied legitimate asylum seekers”, it was on the administration’s chopping block from Day 12.

The problem is that few “legitimate asylum seekers” ultimately receive asylum, and many the claims of many asylum applicants aren’t “legitimate”, as the Supreme Court recognized in 2020: 

Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent. 

The administration ignores these facts, however, in treating every asylum claim as legitimate until it is proven otherwise, which is why you hear White House Press Secretary Karine Jean-Pierre refer to any illegal migrant as an “asylum seeker”.

Back to Deterrence and Consequences

The challenge in implementing this principle, from the White House’s perspective, is that any deterrence “stymies legitimate asylum seekers”. Consequently, deterring foreign nationals from entering illegally had to be ditched as an administration policy, and if you take a look at the latest, “2022–2026 U.S. Border Patrol Strategy”, you won’t see any iteration of the verb “deter” in there. 

That document does, however, state that Border Patrol “will coordinate with partner agencies and entities to ensure individuals in our custody are processed quickly and safely, while applying appropriate consequences, according to law and policy”. 

There are five main consequences DHS can impose on illegal entrants: (1) prosecution for “improper entry” under section 275 of the Immigration and Nationality Act (INA); (2) detention, mandated by section 235(b) of the INA for all illegal migrants at the border and ports; (3) “expedited removal” under section 235(b)(1) of the INA; (4) placement in removal proceedings under section 240 of the INA; and (5) return back across the border to await removal proceedings, under section 235(b)(2)(C) of the INA.

Notwithstanding that “consequences” language in the latest Border Patrol Strategy, the administration has largely refused to impose any of those consequences on illegal migrants. Prosecutions dropped during the pandemic, Biden paused, and Mayorkas then ended, section 235(b)(2)(C) returns (“Remain in Mexico”), nearly all illegal migrants are released, and just 15 percent of the (nearly 189,000) aliens apprehended at the Southwest border in October were subject to expedited removal.

The administration is putting released illegal migrants into removal proceedings, but only as a vehicle to permit those aliens to apply for asylum. Consequently, the dockets of the nation’s 659 immigration judges were burdened with more than 851,000 pending cases as of the third quarter of FY 2023.

It is true, as Mayorkas stated in the CNN interview, that the United States does “have asylum laws”, but as Harlow alluded to, Senate Republicans are reportedly working to amend those asylum laws to deter even more migrants from entering the United States illegally. 

As for our “longstanding international obligations”, the United States is a signatory to the 1967 Protocol to the 1951 Refugee Convention, but every other nation in the Western Hemisphere save Cuba and Guyana has acceded to one or both of those agreements, too, and illegal migrants can seek protection in any of them. Most come here because the economic conditions are better in the United States. 

And, as DOJ explained in 1991: “The language of the Protocol by which the United States adhered to the Refugee Convention demonstrates that the United States did not intend that the Convention, as adhered to, would be self-executing”. The asylum statute, section 208 of the INA, is one part of the United States’ “implementing legislation” for the Protocol and Convention (“statutory withholding” under section 241(b)(3) of the INA is another component), and Congress can amend that provision as it sees fit. 

Asylum is an exception to congressional limits on alien admissions to the United States, but because Biden’s asylum policies have no limiting principle that would control illegal entries, that exception is swallowing the rule, and taking border security with it. Biden won’t change course, so Congress must either amend the asylum law or allow the law to erase our national sovereignty. That really will do “violence to our fundamental principles”. 

Topics: Asylum