The Center recently received an exceptional e-mail. We get a lot from aliens seeking immigration advice (confusing us with USCIS), but this one stood out because the questioner — an alien who has lived in the United States illegally for decades — was asking whether it isn’t better for him to head to the border, illegally reenter, and take advantage of the administration’s quick-release schemes instead of sticking around and waiting for a long-promised amnesty. It’s a reasonable query because that’s where Biden’s long-promised amnesty can be found.
The E-Mail. There’s no way to confirm any of the facts offered by the author of that e-mail, and because it was asked in confidence, I will not disclose any identifying information. With those caveats, here it is:
I follow you because of your migration news. I do not agree with open borders. I am one of the 11 million waiting for immigration reform for 20 years. My question is. I live in [a northeastern U.S. city], if I travel to the border and turn myself in to CBP, do you think they will grant me the humanitarian parole they are giving these migrants?
A couple of key points before I continue. First, again, there is no way to confirm that this individual is (1) who he says he is; (2) really an alien; and (3) here in an unlawful status. It’s possible that he is simply a troll or a provocateur, but even if he were, the question is a valid one simply as an academic exercise.
Second, the CIS.org website is a great source for “migration news”, and not just for citizens concerned about the subject. Please forgive the plug.
A Brief History of Amnesty. One clue that the author of that e-mail is who he claims to be is his use of the word “immigration reform”, which has long been code for “amnesty” for aliens unlawfully present in the United States.
The last “major” amnesty for aliens here illegally was included in the Illegal Immigration Reform and Control Act of 1986 (IRCA).
As my colleague David North explained more than a decade ago:
IRCA was an omnibus immigration law, an attempt to form a grand bargain that would take care of many immigration policy disputes. Part of it was the introduction of “employer sanctions,” saying that it would be illegal, in the future, for employers to hire illegal aliens; the other part was the legalization package. The promise was that sanctions would eliminate the lure of jobs in the U.S. economy and the legalization package would put several important groups of illegal aliens on the path to citizenship, thus shrinking the size of both the current and future illegal populations. There were extensive hearings and much public discussion of the various issues.
In other words, it was an “amnesty to end all amnesties”, and the promise was that once the employer sanctions enforcement components in IRCA kicked in, no more illegal aliens would come to the United States because they wouldn’t be able to work here.
That promise never came to fruition because the employer sanctions component of IRCA as implemented was so watered down as to be meaningless, and the legalization of millions of illegal aliens in the United States simply encouraged even greater numbers of them to come.
Consequently, and like Lucy’s empty promise to hold the football for Charlie Brown, many legislators — mostly Democrats, but not exclusively so — have promised that if we just do it all again, and legalize the now 11 million-plus illegal aliens here, they will ensure the next enforcement regime will stick.
One such major amnesty was attempted during the George W. Bush administration. The Comprehensive Immigration Reform Act of 2006 (CIRA) passed the Senate in May 2006 by a 62-36 margin, only to die in a then-Republican-controlled House.
The House instead countered with the enforcement-heavy Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437), which passed the House 239-182, but went nowhere in the upper chamber.
Advocates’ hopes for such an amnesty, however, really gained traction with the election of Barack Obama in November 2008.
When you hear supporters today contend that amnesty enjoys overwhelming support from the voters, remember that when Democrats under Obama both held an overwhelming majority in the House and a filibuster-proof majority of 60 seats in the Senate, they never even considered amnesty.
Democrats could have sent President Obama any amnesty they wanted, and there is nothing — nothing — that Republicans could have done to stop it. Obama chose to use his political capital on “Obamacare” instead. Given that he is a shrewd politico, he also likely also knew that support for amnesty did not run deep, and that forcing it through would cost his party even more votes than Obamacare did.
Still, there was a big push for amnesty later under Obama, when the Border Security, Economic Opportunity, and Immigration Modernization Act (better known as the "Gang of Eight" bill) passed the Democratic-controlled Senate in June 2013, only again to die in a Republican-controlled House.
One of the Gang of Eight senators was Marco Rubio (R-Fla.). It’s safe to say that his position has shifted in the last decade. And the bill was so unpopular in retrospect that then-Rep. Ron DeSantis (R-Fla.) used it as a cudgel in his 2018 primary race against former state agricultural commissioner Adam Putnam (R) for Florida governor, deriding his opponent as “Amnesty Adam” for his support of the bill as a congressman.
Putnam was a very popular former state-wide official at the time. We might not even be seriously talking about the presidential hopes of Gov. DeSantis had Putnam not embraced the Gang of Eight.
Most recently, in November, Senate Majority Leader Chuck Schumer (D) pulled back the curtain and admitted that his own calls for an amnesty for so-called “DREAMers”, those aliens brought here illegally as children, is little more than a stalking horse to “get a path to citizenship for all 11 million, or however many undocumented, there are here”.
In a bitterly divided Congress, such calls are just talking points intended to gin up support among a small sector of the electorate, or as we call it in Washington, “pandering”. Schumer knows he will never have to ask his caucus to take such a hard vote, so he’s free to blame Republicans for the fact that there won’t be an amnesty anytime soon.
Biden’s Latest Border Schemes. That said, there are two de facto amnesties for illegal aliens operating right now — but they are only available to new arrivals, not long-term illegal residents.
As I’ve previously explained in depth, the Biden administration is currently funneling tens of thousands of illegal migrants monthly through the ports of entry via two schemes so unmoored from the terms of the Immigration and Nationality Act (INA) that they are the subject of various state-filed lawsuits.
Those latest administration schemes were only implemented after the public (and more importantly, the courts) realized that Biden’s “overarching non-detention policies” had resulted in the release of — at a minimum — more than 2.1 million illegal migrants whom Congress in the INA required DHS to detain.
In fact, those two de facto amnesties — one that allows would-be migrants with no documents and no right to be admitted to schedule “appointments” at the Southwest border ports for release into the country (the “CBP One app interview scheme”), and another that allows Venezuelan, Nicaraguan, Haitian, and Cuban nationals to apply from abroad for two-year periods of “parole” (the “VNHC parole program”) — were implemented for no reason other than to hide the scope of the migrant disaster from the American people.
Aliens who enter through the CBP One app interview scheme are either paroled indefinitely (read: “likely forever”) into the United States or are released and sent to immigration courts so overburdened by the hundreds of thousands of other aliens already foisted upon them by the president’s earlier feckless policies that their cases won’t be resolved for a decade or more (meaning again, they’re likely never leaving).
Aliens paroled into the United States may, by regulation, immediately apply for work authorization, while those in removal proceedings can simply apply for asylum (regardless of whether they have valid claims or not), and then ask USCIS for work authorization 150 days after those applications are filed.
Likewise, aliens who fly to interior airports and enter through the VNHC parole program are promised at least two years to live and work here under pseudo color of law, but the major flaw (though likely a feature, not a bug) is that Biden has no plan to make them leave at the end of that two-year period. That flaw, in fact, is a key basis for at least one of the state suits challenging the program.
The Illegal Alien’s Dilemma. All of which brings me back to the e-mail, and why I refer to the CBP One app interview scheme and the VNHC parole program as “de facto amnesties”.
As explained above, there’s no real hope that the author will receive legalization through amnesty at any time in the foreseeable future, meaning that he’s likely not going to get the right to live and work here — even temporarily — so long as he continues to reside in an unlawful status in the country.
But if he were to fly to say, Monterrey or Tijuana, and head to the border with his cellphone, he could make an appointment through the CBP one app at the port of entry. Given that, reportedly, more than 99 percent of the migrants who have made such appointments have been allowed to enter the United States, he has a really excellent shot at getting in — and getting parole or a court date, either of which would render him unremovable for a period and provide him work authorization.
But wait, you might say — what about the 20 years that this guy has been living in the United States? My response: What about it?
Take, for example, a recent New Yorker article (which I was interviewed for) that highlighted the case of one Gustavo Hernández (a Venezuelan national), his wife Marielis, and his daughter Ana Paula.
None of them have been in Venezuela since 2018, when they moved to Colombia and then Peru, where “Hernández found a one-bedroom apartment in a gritty part of town and began working odd jobs, selling plantain chips and lollipops on the street”.
The New Yorker reports that he made a CBP One app appointment in March, and five days later he and his family were allowed to enter with an immigration court hearing date in Portland, Ore. — “not far from where they are staying with a friend”. Plainly, Biden’s DHS isn’t that concerned about where migrants were living prior to showing up at the U.S.-Mexico line.
That said, if our unidentified correspondent were concerned that his two decades in the United States might at least slow his reentry, there’s no reason — aside from obvious criminal penalties if he were to get caught and anyone were to care — that he could not omit that fact.
As a lawyer, I cannot and certainly in this instance do not advise anyone to lie to the U.S. government. But, as I have recently explained, assuming he has not had any prior interactions with authorities here, there’s no way for DHS to ascertain the truth. Welcome home.
Assuming I have not been clear already, let me put a pin in it: I am not recommending, suggesting, or advising anyone — let alone an alien unlawfully present in the United States — to defraud CBP or any other U.S. government official or agency. Neither I nor anyone else from the Center has responded to that e-mail, and we have no plans to do so.
But if I did respond, I would tell him to stay home because what he has in mind is likely fraud.
That said, I wanted to explain how Biden’s various catch-and-release schemes at the Southwest border (1) are so vulnerable to fraud as to suggest those schemes are actively inviting it, and (2) to explain how the Biden administration has implemented a de facto amnesty at the Southwest border — not for illegal long-term residents of the United States, but for the latest arrivals.
Imagine what Americans would think about these amnesties if the administration explained it to them. Which, of course, it has no plans to do. Fortunately, or not, the average illegal alien understands our immigration system better than most so-called “experts” and nearly anybody in the media. But probably not better than the Biden officials who came up with these illegal schemes.