Fleshing Out the White House Framework on Immigration

By Andrew R. Arthur on January 29, 2018

On January 23, 2018, the White House released its "Framework on Immigration Reform & Border Security", the president's proposal for providing status to up aliens covered by President Obama's Deferred Action for Childhood Arrivals (DACA).

That framework is specific as relates to certain details. For example, it proposes that legislation: "Provide legal status for DACA recipients and other DACA-eligible illegal immigrants, adjusting the time-frame to encompass a total population of approximately 1.8 million individuals."

On other issues, however, it is somewhat less precise. The most intriguing provision therein directs that legislation: "Deter illegal entry by ending dangerous statutorily-imposed catch-and-release and by closing legal loopholes that have eroded our ability to secure the immigration system and protect public safety." This provision raises the question, "What exactly do those 'loopholes' entail, and how would proposed legislation close them?"

In a January 17, 2018, post, I explained that border security is more than just walls and additional Border Patrol agents. I noted that the president's October 2017 Immigration Principles and Policies identified one significant "loophole", related to "Unaccompanied Alien Children" (UACs). That document states:

Loopholes in current law prevent [UACs] that arrive in the country illegally from being removed. Rather than being deported, they are instead sheltered by the Department of Health and Human Services at taxpayer expense, and subsequently released to the custody of a parent or family member— who often lack lawful status in the United States themselves. These loopholes in current law create a dramatic pull factor for additional illegal immigration and in recent years, there has been a significant increase in the apprehensions of UACs at our southern border. Therefore, the Administration proposes amending current law to ensure the expeditious return of UACs and family units.

As the foregoing suggests, stemming the flow of UACs is a significant border security issue, and one that strains the limited resources of the Border Patrol.

It is also a problem that is steadily getting worse, after having improved significantly. The latest statistics from U.S. Customs and Border Protection (CBP) show that in the first three months of FY 2018, the number of UACs apprehended along the Southwest border has been steadily increasing, from 3,161 in October 2017, to 3,990 in November 2017, to 4,083 in December 2017. While this last figure is well below the height of UAC entries in FY 2017 (November 2016, when the number of UACs apprehended was 7,346), it is also more than four times the monthly low in FY 2017, April 2017, when only 997 UACs were apprehended along the Southwest border.

Plugging these loopholes will not only reduce the incentives for UACs to enter the United States illegally, but will also reduce the opportunities for criminal smuggling gangs and cartels to profit from this illicit, and dangerous, business. Title V of Division B of the "Securing America's Future Act of 2018" (SAFA), H.R. 4760, provides language that would accomplish this goal.

That provision is preferable to section 1322 of the "Security, Enforcement, and Compassion United in Reform Efforts Act" (SECURE Act), S. 2192, which would require immigration-judge screening of potential UACs. As I stated in an earlier post:

That screening process would require the immigration court to conduct an in-depth proceeding to "determine the status of the unaccompanied alien child who is an applicant for admission to the United States" and in the case of a UAC "seeking asylum ... determine whether the unaccompanied alien child meets the definition of unaccompanied alien child" under section 235(g) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232(g))."

With all due respect to my former colleagues on the immigration court, immigration judges are in no better position than [Department of Homeland Security (DHS)] adjudicators to make the determinations called for in section 1322 of the SECURE Act. Moreover, given the complexity of the proceedings envisioned, those proceedings will add significantly to the immigration courts' dockets, without providing substantial additional safeguards for those UACs. In fact, the proposed procedures in section 1322 could provide more incentives for UACs to attempt the dangerous passage to the United States, and lead to further criminal exploitation of the UAC program.

Other loopholes that were identified in the president's October 2017 priorities memorandum relate to vulnerabilities in our current asylum law. Lax "credible fear" standards encourage fraud and provide additional incentives for aliens to attempt to enter the United States illegally, as I described in an April 2017 report. In addition, and as explained in that report and in additional research by Todd Bensman, our current credible fear system presents a national-security risk.

Plugging these loopholes is critical to stemming the flow of illegal entries, securing our borders and ports of entry, and protecting our homeland. Again, legislation to accomplish this goal can be found in Title IV of Division B of SAFA.

So-called "sanctuary" policies also encourage illegal entry. As my colleague Jessica Vaughan has stated:

These cities, counties, and states have laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE — either by refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.

Such policies encourage aliens to enter the United States illegally, because those jurisdictions actively hinder U.S. Immigration and Customs Enforcement (ICE) immigration-enforcement efforts. Once in a sanctuary jurisdiction, the logic goes, an alien who entered illegally can live all but free from ICE apprehension. Denying federal funding to sanctuary jurisdictions and providing ICE with strong detainer authority are essential to reversing those policies, as the president's priorities make clear, and must be part of any border security effort.

Language dealing with sanctuary cities and cooperation with local law enforcement can be found in Title II of Division B in SAFA, and the Senate should consider that proposed legislation as it begins debate on the president's framework.

That framework also calls for the appropriation of "additional funds to hire new DHS personnel, ICE attorneys, immigration judges, prosecutors and other law enforcement professionals." In the October 2017 priorities memorandum, the White House stated, under the heading "Ensure Swift Border Returns":

Immigration judges and supporting personnel face an enormous case backlog, which cripples our ability to remove illegal immigrants in a timely manner. The Administration therefore proposes providing additional resources to reduce the immigration court backlog and ensure swift return of illegal border crossers.

At the present time, there are just over 340 immigration judges at the nation's 58 immigration courts. In a recent post, however, I determined that there were more than a million pending or "administratively closed" immigration cases, or almost 3,000 cases per judge. Additional resources must be provided if the immigration judge corps is to ever gain control of its dockets, and more importantly ensure the swift removal of aliens who have entered illegally and who do not have relief.

Such courts must also be staffed by ICE lawyers, who represent DHS in removal proceedings. Accordingly, the number of ICE attorneys must increase proportionally with any increase in the number of immigration judges.

For these reasons, it is a positive development that the framework states that any legislation should "[c]lose crippling personnel deficiencies by appropriating additional funds to hire new DHS personnel, ICE attorneys, immigration judges, prosecutors and other law enforcement professionals."

Another major legal loophole that must be plugged relates to detention. Specifically, in Zadvydas v. Davis, the Supreme Court held that the government could not indefinitely detain an alien who had been ordered removed for more than six months unless the alien's removal was reasonably foreseeable. This has required in certain instances the release of potentially dangerous aliens.

As the October 2017 priority memorandum explains:

Various laws and judicial rulings have eroded ICE's ability to detain illegal immigrants (including criminal aliens), such that criminal aliens are released from ICE custody into our communities. Therefore, the Administration proposes terminating outdated catch-and-release laws that make it difficult to remove illegal immigrants.

That memorandum contains two proposals to end "catch-and-release":

i. Ensure public safety and national security by providing a legislative fix for the Zadvydas loophole, and authorizing ICE, consistent with the Constitution, to retain custody of illegal aliens whose home countries will not accept their repatriation.

ii. Require the detention of an alien: (1) who was not inspected and admitted into the United States, who holds a revoked nonimmigrant visa (or other nonimmigrant admission document), or who is deportable for failing to maintain nonimmigrant status; and (2) who has been charged in the United States with a crime that resulted in the death or serious bodily injury of another person.

Clear authority that allows ICE to detain dangerous aliens indefinitely after a final order of removal until removal is possible is critical to protecting our society from aliens who pose a criminal and national-security risk. Title III, Division B, section 3309 of SAFA closes the Zadvydas loophole by providing the secretary of Homeland Security the authority to detain dangerous aliens beyond the 90-day removal period in section 241(a)(1)(A) of the Immigration and Nationality Act (INA), and the Senate should apply that language in implementing the president's framework.

A related issue is the problem of so-called "recalcitrant" countries, another element of the president's immigration framework. These are countries that refuse to accept back their nationals after they had been ordered removed.

The framework states that legislation must "[e]nsure the prompt removal of illegal border-crossers regardless of country of origin." As the House Oversight and Government Reform Committee found in July 2016: "Thousands of deportable criminal aliens are released back onto U.S. streets because their home countries refuse to repatriate them."

Those aliens can pose a significant threat to the community. The Washington Times reported in May 2017:

Recalcitrant countries have long been among the serious issues that didn't get much attention, though the consequences can be extreme.

In one notorious case, Haiti refused to take back an illegal immigrant who had served time for attempted murder, and U.S. officials were forced to release him. He killed a young woman in Connecticut just months after his release.

Another illegal immigrant, Thong Vang, was released from prison in 2014 after serving time for rape convictions, and his home country of Laos refused to take him back. He was sent to a California prison last year and shot two guards, police said.

In August 2017, U.S. News and World Report identified 12 recalcitrant countries: Burma, Cambodia, China, Cuba, Eritrea, Guinea, Hong Kong, Iran, Laos, Morocco, South Sudan, and Vietnam. In September 2017, DHS, in coordination with the Department of State, announced the implementation of visa sanctions on four countries (Cambodia, Eritrea, Guinea, and Sierra Leone) "due to lack of cooperation in accepting their nationals ordered removed from the United States."

Additional authorities to respond to the issue of recalcitrant countries, including the suspension of aid, would assist DHS in removing aliens whose countries do not want them back. In addition, Title VI, section 601 of the "Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act," (Davis-Oliver), H.R. 2431, contains a process to ensure timely repatriation of aliens ordered removed by providing sanctions for officials and employees of recalcitrant countries and by reducing the visas available to those individuals. The Senate should look to that provision in implementing the president's framework.

The framework suggests that these are just a few of the legislative changes that are necessary in order to improve border security and protect the American people from those who pose the danger. How Congress will respond is yet to be seen.

Topics: Politics