Ineffective and Problematic Senate Border Bill Rises from the Dead

More Frankenstein than Lazarus, a stunt to shift blame to the GOP for the border

By Andrew R. Arthur on May 21, 2024

The Washington Times has reported that Senate Majority Leader Chuck Schumer (D-N.Y.) plans to bring an ineffective and problematic border bill — negotiated in secret by Sens. James Lankford (R-Okla.), Krysten Sinema (I-Ariz.), and Chris Murphy (D-Conn.) with the assistance of DHS Secretary Alejandro Mayorkas in the late fall and early winter — to the floor for a vote. That bill looked dead on arrival shortly after it was unveiled, and no one thinks it’s going to pass the Senate this time, so Schumer’s plan is really more a political stunt to shift blame for the border catastrophe to the GOP than a legislative strategy. If they hope to fix the border, the GOP and security-minded Democrats should have a better response than the first time this proposal saw the light of day.

Chaos at the Border. This bill is only an issue because the border has been in a state of chaos since shortly after President Biden took office in January 2021.

In the 14 fiscal years prior to FY 2021, apprehensions at the Southwest border never exceeded 860,000 and topped 800,000 just twice — in FY 2007 (858,638) and in FY 2019 (851,508).

In response to that latter border surge, then-President Trump implemented a number of policies to deter illegal migrants by denying them the ability to live and work in the United States while their removal hearings were proceeding, most famously (and successfully) the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

Biden reversed nearly all of those Trump-era border policies directly after taking office, and in a break with every one of his predecessors, abandoned deterrence as a border strategy, instead inviting almost any foreign national who could make it to this country to remain at large here while applying for asylum.

CDC orders directing the expulsion of migrants, issued under Title 42 of the U.S. Code, were the sole Trump-era border-related initiatives Biden retained, though the administration ended those expulsion orders in May 2023 after fighting efforts by certain states to keep them in place for over a year.

Consequently, illegal entries have soared in the last 39 months, with apprehensions nearing 1.66 million at the Southwest border in FY 2021 and exceeding two million in FY 2022 (2.2 million-plus) and FY 2023 (2.045 million).

In a 2023 order barring the administration from releasing illegal border migrants on “parole” (with access to work authorization), federal Judge T. Kent Wetherell rejected the administration’s argument that “geopolitical factors” — “climate change”, corruption, violence, poverty, etc. — have been driving this border surge.

He explained, instead, that the surge is happening because administration officials have:

effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course.

Current Border Detention Mandates, Expedited Removal, and Credible Fear. Each of those border migrant releases — and there have been around 3.6 million of them since Biden took office — violates section 235(b) of the Immigration and Nationality Act (INA), which in three separate instances mandates the detention of inadmissible “applicants for admission”, including aliens barred from admission at the ports and illegal aliens between them.

That INA provision offers CBP two options for handling certain classes of those inadmissible aliens. The agency can choose to subject aliens barred from admission because they either lack proper entry documents or offer fraudulent documents to “expedited removal”, a tool Congress gave officers in 1996 to quickly deport aliens with no right to enter.

Alternatively, CBP can opt to place those aliens and aliens inadmissible on all other grounds into “regular” removal proceedings before immigration judges (IJs).

Expedited removal, however, comes with a “catch”, which requires CBP officers at the ports and Border Patrol agents to refer aliens subject to that truncated process who request asylum of express a fear of harm if returned over to asylum officers (AOs) at USCIS, for what is known as a “credible fear” interview.

The “credible fear” standard is low, defined by statute as “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”.

At the end of those interviews, AOs decide whether aliens’ claims of harm are credible and may satisfy the standards for asylum. If the AO issues a “positive credible fear determination”, the alien is generally referred to an IJ to apply for asylum in removal proceedings, but when an AO makes a “negative credible fear determination”, the alien can either ask for an IJ to review that decision or accept removal.

The Biden administration has largely opted to skip expedited removal entirely, however. Of the nearly 129,000 aliens apprehended entering illegally at the Southwest border in April, for example, fewer than 28,000 (21.6 percent) were subject to expedited removal. By contrast, more than 67,700 were just released.

The Senate Border Bill. It’s against this backdrop of chaos, not-deterrence, and failure to comply with congressional border mandates that Lankford, Sinema, and Murphy crafted and released their bill.

But rather than addressing any of the factors driving this crisis or curbing the administration’s abuses of its statutory powers and its illicit rejection of congressional mandates, that bill largely perpetuates what Biden’s DHS has been doing, and makes it more difficult for a future administration to follow a more sensible tack.

It would expand parole to include inadmissible aliens coming for certain Native American ceremonies on tribal land, while separately authorizing the DHS secretary to parole aliens coming for an “exigent medical circumstance” or for “an urgent humanitarian reason directly pertaining to the individual alien, according to specific criteria” that Mayorkas alone gets to choose.

Worse, it would codify the administration’s mass-release regime by adding a new section 235B to the INA in the Senate bill.

That section 235B amendment would allow Mayorkas to send illegal migrants, based solely on “operational circumstances”, not to removal hearings where their asylum claims would be considered by IJs in adversarial proceedings but instead to one-sided asylum-review interviews overseen by AOs and also mandate that such migrants be released, in the case of adult migrants on costly and ineffective “Alternatives to Detention” (ATD).

If, as Judge Wetherell concluded, the migrant crisis is being driven by migrant border releases, what possible good could it do for Congress to require that illegal migrants be released, simply based on the secretary’s caprice and undefined “operational circumstances”? The answer is none, which raises a second separate question: why anyone thought it was a good idea to begin with.

Separately, however, I have written extensively about how such AO asylum adjudications make it much more likely that aliens with weak or bogus asylum claims will be granted protection, placed on a path to citizenship, and then allowed to bring their family members into the country.

It’s such a bad idea that 15 states combined are suing the Biden administration in two separate federal court actions — Texas v. Mayorkas and Arizona v. Garland — to shut down a March 2022 effort known as the “Asylum Interim Final Rule” (Asylum IFR) that also attempts to give AOs that authority, albeit purely administratively and unmoored from any statutory basis.

If 15 states are suing to shut that Biden Asylum IFR down, why would three senators want to enshrine it in statute? There’s no good reason aside from expediency, but even that wouldn’t be guaranteed under this section 235B scheme, as I have also explained elsewhere.

And while the Senate bill would attempt to rewrite the faulty credible fear standard for aliens subject to expedited removal, the amendments it proposes to do so are purely cosmetic.

You can read my extensive analysis on this point, where I admit that I was hornswoggled initially by the proposed amendment, which so expertly hides its true intentions as to be imperceptible to any but the most canny and sophisticated reviewer.

If, as I presume, that amendment was drafted and pitched by DHS officials involved in these bipartisan (tripartisan?) Senate negotiations, they owe an apology to the credulous senators who accepted it.

The 5,000 Per-Day Limit. Likely the most vaunted part of the Senate border bill (because it’s the easiest to understand) is the part that creates “emergency” authority allowing the president to expel illegal migrants once CBP Southwest border encounters reach 4,000 per day, and also mandate expulsions when encounters reach 8,500 per day or there is a seven-day average of 5,000 encounters.

As I noted in discussing that proposal back in February, this “5,000 per-day” limit is shot-through with loopholes and sunsets that undermine any effectiveness the concept may have had.

The much more salient point, however, is that it resigns Congress and the country to the idea that 1.825 million aliens pouring over the Southwest border per year is the “new normal”, and that there’s nothing this administration can do about it.

That elides the fact, however, that the administration itself is directly responsible for the migrant surge that it has overseen through its border release policies, and can stop the flow administratively.

By the way, 1.825 million (5,000 entries times 365 days in the year), is more or less a floor under this statutory scheme. That’s because even when the border is closed under the “emergency” authority the bill would provide, it also mandates that Mayorkas “maintain the capacity to process, and continue processing ... a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry in a safe and orderly process developed by the Secretary”.

Of course, that raises the question of what would happen if fewer than 1,400 “inadmissible aliens” show up at the Southwest border ports on any given day (must Mayorkas try to recruit more, or simply shanghai them?), but it any event it adds 511,000 more illegal aliens per annum.

The Political Angle. If you wanted to break the border, destroy the morale of CBP officers and Border Patrol agents, and give cartels carte blanche to continue to exploit the chaos at the U.S.-Mexico line to run deadly drugs into the United States, this bill is as good a starting point as any. If you wanted to actually bring the border under control, however, scrap all 370 pages of this plan and start over.

The good news — from a national-security and law-enforcement perspective, at least — is that Schumer doesn’t really expect this bill to go anywhere. He doesn’t want to actually pass it (or even better, fix it to make it effective); he instead wants to use it to deflect blame for the border onto GOP senators who refuse to play ball and pass the package.

The bill failed in early February because few Republicans supported it (for many of the reasons above), but Politico notes that Schumer expects a number of Democrats to vote nay this time around, too. And, as per that journal, even Lankford himself is a downer on this ploy, describing Schumer’s effort as “not serious”.

In the most recent Harvard-Harris poll, 32 percent of respondents identified “immigration” as among the most pressing issues facing the country today, the second-leading issue after only “price increases and inflation” (35 percent).

And just 40 percent of those polled approved of the administration’s performance on immigration, Biden’s second-lowest mark after his handling of the “Israel-Hamas conflict” (36 percent).

That’s actually one of the more favorable scores Biden has received on his immigration performance: The RealClearPolitics average has him 28.6 points in the hole on the issue with American voters. If that discontent carries over to November, not only Biden but all down-ticket Democrats will likely feel the impacts.

Biden’s effort to use the February failure of the Senate border bill as a cudgel against his GOP opponents has thus far been unsuccessful, which is why Schumer is trotting it out again. But make no mistake — this bill is more Frankenstein than Lazarus, sewn together with various parts, none of which are good, and no one will weep over its demise — except for the White House and legislators playing political games.