DHS Secretary Markwayne Mullin was interviewed by Bret Baier on Fox News’s “Special Report” on Monday night and proposed repealing CBP’s designation of international airports in sanctuary cities as “ports of entry”. Leave it to a former plumber to throw a wrench into politicos’ anti-enforcement schemes.
“Designation of Ports of Entry for Aliens Arriving by Aircraft”
While most people think of the “U.S. border” in terms of places on the nation’s physical boundaries like San Ysidro, Calif., Laredo, Texas, or Detroit’s Ambassador Bridge, it also technically runs through U.S. cities with international airports.
At those air “ports of entry” (POEs), officers from CBP’s Office of Field Operations (OFO) screen travelers arriving from abroad — both “arriving aliens” applying for admission and U.S. citizens seeking to return to the United States.
Inspections of aliens are covered by section 235 of the Immigration and Nationality Act (INA), but the preceding section 234 of the act, “Designation of ports of entry for aliens arriving by aircraft”, sets the stage for where those inspections can occur.
It begins:
The [DHS secretary] is authorized (1) by regulation to designate as ports of entry for aliens arriving by aircraft any of the ports of entry for civil aircraft designated as such in accordance with law; (2) by regulation to provide such reasonable requirements for aircraft in civil air navigation with respect to giving notice of intention to land in advance of landing, or notice of landing, as shall be deemed necessary for purposes of administration and enforcement of this chapter; and (3) by regulation to provide for the application to civil air navigation of the provisions of this chapter where not expressly so provided in this chapter to such extent and upon such conditions as he deems necessary.
By regulation, at 8 C.F.R. § 234.4, the secretary has delegated the authority for making designations of airport POEs to the commissioner of CBP, but three other cabinet officials must approve the choice before the commissioner can make such a designation.
First, the secretary of Commerce must approve the facility “as a properly equipped airport”.
Next, the secretary of Treasury must designate the airport “as a port of entry for aircraft arriving in the United States from any place outside thereof and for the merchandise carried thereon”.
Finally, the secretary of Health and Human Services (HHS) must have designated the airport “as a place for quarantine inspection”.
Revoking a POE Designation
While designating an airport as a POE is a (relatively) straightforward process, revocation of such a designation is a lot more complicated.
A Customs rule, 19 C.F.R. § 122.11(b), captioned “Withdrawal of designation”, appears to control revocations and it states:
The designation as an international airport may be withdrawn for any of the following reasons:
(1) The amount of business clearing through the airport does not justify maintenance of inspection equipment and personnel;
(2) Proper facilities are not provided or maintained by the airport;
(3) The rules and regulations of the Federal Government are not followed; or
(4) Some other location would be more useful.
That process commences with the filing of a notification in the Federal Register that CBP is proposing to amend 19 C.F.R. § 122.13 (“List of international airports”) and 8 C.F.R. § 100.4 (“Field offices”) to revoke an existing designation of an air POE, at which point the public can weigh in on the proposed change.
Section 100.4(b) of Title 8 in the Code of Federal Regulations is the immigration-related provision, and subsection (b) therein (“Ports-of-Entry for aliens arriving by aircraft”) is the one Mullin floated amending.
Boston Logan is on that list (District 2), as is New York’s LaGuardia (District 3), Philadelphia International Airport (District 4), Chicago’s O’Hare and Midway (District 9), San Francisco International Airport (District 13), and LAX in Los Angeles (District 16).
Such revocations would be reviewed when (not if) challenged under the Administrative Procedure Act (APA), and consequently DHS would be forced to dot every “i” and cross every “t” to pull such a plan off, because those determinations would be subject to judicial review under 5 U.S.C. chapter 7.
In particular, 5 U.S.C. §706 (“Scope of review”) permits a federal judge to “hold unlawful and set aside agency action, findings, and conclusions” the court finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”, or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”, or “without observance of procedure required by law”.
In adjudicating those cases, judges will also follow precedent of the Supreme Court in DHS v. Regents (the “DACA case”) to determine whether DHS considered the “reliance interests” of the residents of the regions in which those airports are located, of the state and local governments impacted, of the carriers who fly into those airports, and countless others.
Simply put, revoking an air POE in a sanctuary jurisdiction will be a tough slog, and the odds of success are likely slim as a legal matter.
Plunger, Brushback Pitch, or Throttle?
That said, if Mullin plays the threat properly, it may reap political rewards.
Sanctuaries are “free riders” on the federal immigration system. For starters, their businesses claim to need alien workers to survive, and their universities rely (to one degree or another) on nonimmigrant students.
And yet, when it comes time for ICE to enforce the laws, sanctuary grandees act like self-righteous and petulant children, throwing up any number of roadblocks from refusing to honor detainers for alien criminals in their custody to actively protesting arrests and refusing the agency access to their parking lots.
If your toilet was backed up, you’d stop flushing until you grabbed a plunger (or called Mullin Plumbing, “the largest service company in the region”) and cleared the clog.
Why, then, should DHS continuously funnel aliens into a city or state whose officials impede efforts to remove those same aliens when they commit crimes, overstay their visas, or are under removal orders?
Alternatively, Mullin’s comments to Baier may simply be an offhand “brushback pitch” thrown by a reliever brought in midway through the game to put sanctuary honchos on their heels and let them know that while he may not be as showy as his predecessor, he’s every bit as dogged to get the job done.
As erstwhile Dodgers’ ace Sandy Koufax once explained: “Pitching is the art of instilling fear.” To a degree, so is immigration enforcement at DHS.
State and local officials in sanctuaries can complain about “overreach” by the secretary all they want, but the law gives him (or more precisely CBP Commissioner Rodney Scott) leverage he can use to counter their more noxious policies.
Or perhaps Mullin is simply setting the table for a less legally onerous but almost as effective action: throttling the number of arrivals at air POEs in places represented by members and senators who refuse to fund his department.
CBP officers haven’t been formally paid in nearly two months, and there is no reason for Mullin to force them to work for free.
Minority Leader Chuck Schumer (D-N.Y.) has led Democrats’ refusal to fully fund DHS in the Senate, and JFK International (designated as an major class A air POE pursuant to 8 C.F.R. § 100.4) in his home state of New York served 31.5 million international passengers in 2024 — an average of more than 86,000 per day.
If Mullin were to furlough just half of the CBP officers inspecting those passengers, delays would shoot through the roof, and nobody wants to stand in an hours-long inspection line.
Workhorse
Mullin has established a reputation as a workhorse, not a show pony; he’s described as a “working cow-calf rancher” and “undefeated Mixed Martial Arts (MMA) fighter” on the DHS website. The Octogon has nothing on the Hill, but on Monday night the secretary showed he’s not afraid to throw some political blows in an attempt to strike his opponents where it hurts — right in the airport terminal.