New York City is currently in the midst of a “migrant crisis”, as 110,000 new arrivals (including 20,000 school-aged children) have poured into the city from the Southwest border, seeking billions in municipal assistance. Somehow, before our very eyes, the largest city in the United States has also become the largest refugee camp in the Western Hemisphere, as well. For proof, I turn to the “Emergency Handbook” issued by the world’s foremost authority on the subject, the United Nations High Commissioner for Refugees (UNHCR). NYC may want to look to it for lessons.
How the Border Is Supposed to Work. Before I begin, however, it is important to turn to the “handbook” DHS is supposed to follow in dealing with “new arrivals” at our nation’s borders: Title 8 of the U.S. Code, better known as the Immigration and Nationality Act (INA).
Under the U.S. Constitution, Congress — not the executive branch — decides which foreign nationals are allowed into the United States, and which conversely should be excluded. Or, as the Supreme Court explained in its 1954 decision in Galvan v. Press, a constitutional challenge brought by a green card holder charged with deportability based on membership in the Communist Party:
The power of Congress over the admission of aliens and their right to remain is necessarily very broad, touching as it does basic aspects of national sovereignty, more particularly, our foreign relations and the national security.
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. ... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added; citations omitted.]
To ensure that the executive branch complies with its “policies pertaining to the entry of aliens”, Congress in 1996 codified the process by which officers from the then-INS, and now-CBP, must inspect and, when appropriate, admit aliens to the United States.
That inspection protocol is set forth in section 235 of the INA, captioned “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing”.
Section 235(a)(1) requires CBP to treat all aliens present in the United States who have not been admitted, as well as aliens who arrive in the United States — both at the ports of entry and across the border between the ports — as “applicants for admission”.
Under section 235(b) of the INA, CBP “immigration officers” — a term that applies to both Border Patrol agents and to CBP officers from the agency’s Office of Field Operations (OFO) at the ports — must determine whether each applicant for admission is admissible to the United States.
Pursuant to section 235(b)(1) of the INA, if an applicant for admission lacks appropriate documents allowing the alien to be admitted to the United States, or attempts to enter the country via fraud, the immigration officer may subject the alien to “expedited removal”, a process that allows CBP to quickly expel aliens without first obtaining a removal order from an immigration judge.
All other inadmissible aliens, as well as aliens whom CBP chooses not to subject to expedited removal, are placed into removal proceedings before an immigration judge to determine whether they are admissible to the United States and if they are not admissible, whether they are eligible for “relief from removal” (such as asylum) or should be removed. That process is set forth in section 235(b)(2) of the INA.
Regardless of whether the alien is subject to expedited removal or regular removal proceedings, however, section 235(b) of the INA mandates that all alien applicants for admission be detained until the alien is either admitted, granted relief, or removed.
Biden Has Ignored Congress’ Detention Mandate. The Biden administration has, however, all but ignored that detention mandate, releasing more than 2.3 million inadmissible applicants for admission encountered by CBP at the Southwest border into the United States since January 2021. Put differently, the 110,000 migrants who have made their way to NYC represent fewer than 5 percent of all of the aliens whom Biden has released in violation of law.
A federal judge found in March that those releases are the reason for the ongoing “crisis at the border”, holding that the administration has “effectively incentivized” what it itself refers to as:
“irregular migration” 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.
UNHCR Emergency Handbook. Which brings me back to the Emergency Handbook, which the UNHCR refers to as a “guide to agile, effective and community based humanitarian emergency responses”.
The Handbook begins with “emergency assistance”, and (not surprisingly) “cash” is at the top of that list, followed by “core relief items” (“non-food items” “that enable forcibly displaced and stateless persons to conduct their daily lives” and “connectivity”, i.e., cell phones and internet); “education and livelihood”; “food security”; “health and nutrition”; “shelter, camp, and settlement”; and “water, hygiene, and energy”.
“Shelter, Camp, and Settlement”. There is a rather robust discourse in the “shelter, camp, and settlement” section on “Camp Strategy considerations”, and yet nonetheless explains: “Camps should normally be considered as the last option.”
Why the “last option”? Because according to UNHCR:
A defining characteristic of camps is that they often limit the rights and freedoms of refugees such as their ability to move freely, choose where to live, work or open a business, cultivate land or access protection and services and their ability to make meaningful choices about their lives.
That’s reasonable in the abstract, I assume, but when you consider that a defining characteristic of refugee populations is that they cannot remain in or return to their homes because of a threat of death, disease, privation, or persecution, some limits on “rights or freedoms” in the areas in which they seek refuge is to be expected.
Such expectations, however, are not within UNHCR’s remit.
“Alternatives to Camps — Response in Urban and Rural Settings”. So, what is UNHCR’s preferred option? You can find that in the subsection of the Handbook titled “Alternatives to camps — response in urban and rural settings”, which begins:
Millions of refugees have settled peacefully in rural and urban areas, living on land or in housing that they rent, own or occupy informally, or benefiting from hosting arrangements in communities or families. For refugees, such settlements present obvious advantages over camps: they can be anonymous, can earn money, and construct a future.
And what better “urban area” can there be than NYC, already home to a population of more than 8 million, the “world's financial capital”, and a place that — according to its comptroller — has a budget of $107 billion for FY 2024 and that had $18.7 billion on hand in the bank in April? Plus, the UN can keep an eye on things there from its home in Manhattan’s Turtle Bay.
Work Authorization. There’s only one problem, and it’s not unique to the city’s burgeoning refugee camp — few if any of the 110,000 migrants who have come to NYC have authorization to work in the United States, and that fact is key to the city’s problems.
UNHCR warns about this, noting: “Host governments may lack an enabling national legal and policy framework (permitting freedom of movement and the right to work, for example).” While the United States does have a national legal framework permitting certain migrants to work, it is limited by design.
Work authorization for aliens in the United States is a strictly federal matter, governed — again in accordance with Congress’ plenary power over immigration — by section 274A of the INA, which makes it both a civil and criminal offense for an employer to knowingly hire an alien who lacks such authorization.
Many of the aliens in NYC were released into the United States under (and in excess of) DHS’s authority to parole otherwise inadmissible applicants for admission “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit” in section 212(d)(5)(A) of the INA, while others were (illegally) released on their own recognizance (OR) pursuant to DHS’s general arrest authority in section 236(a) of the INA (which doesn’t actually apply to aliens apprehended at the border).
The pertinent regulation, 8 C.F.R. § 274a.12(c), permits parolees (at subparagraph (11)), to apply for work authorization right away, but it does not directly allow aliens released on OR to apply for work cards. Those OR aliens, under subparagraph (8), must wait until at least 180 days after they have filed their asylum applications before they can be granted work authorization.
All of which raises two issues. First, while parolees are allowed to apply for employment authorization documents (EADs) as soon as they are released into the United States, USCIS is currently backlogged four months in adjudicating those applications.
Second, the aliens who were released on OR must first appear in immigration court to file their asylum applications and then must wait an additional 150 days to apply for their EADs (the USCIS backlogs for those applications are currently 5.5 to 14 months).
Those OR aliens should have been released with court dates, but it can take months for that first removal hearing (known as the “initial master calendar hearing”) to be held, and the 150-day EAD clock only starts on that date if the alien respondents have their asylum applications ready to be filed on the date of that hearing (which few do). And it can take months for those removal cases to be rescheduled, delaying the process further.
Note that these delays are fixtures, not bugs, in the U.S. system. Congress expressly did not want aliens to enter the United States illegally simply to be able to work here.
To make matters worse for New York City, however, as the city’s comptroller reported in March, according to “advocates”, “very few migrants have filed their applications” for asylum. Under the asylum statute, they only have one year to do so, and for thousands of them in NYC, time is running out.
That leaves untold thousands of migrants living on NYC’s dime in city shelters with no legal employment prospects and no real reason to leave, which is why New York Gov. Kathy Hochul (D) is considering an “unprecedented” plan for the state to issue them work authorization.
As I have explained elsewhere, in the immigration context, “unprecedented” generally means “illegal”, which such a plan would be in this instance. Again, only Congress can grant those aliens employment eligibility, which is not likely to occur.
Is NYC Really a Refugee Camp? It may seem strange for Americans to even consider that there is a refugee camp assembling in our nation’s largest city, but the city is quickly becoming one — to the detriment of both the Big Apple and the migrants themselves.
While the detention mandates in section 235(b) of the INA were not explicitly designed to prevent this from happening (they instead were written to ensure that inadmissible applicants for admission appear at their removal hearings and for deportation), enforcement of the laws would have had the same effect.
In detention, those aliens would have received the same benefits that most of NYC’s migrants currently receive: shelter, food, clothing, education for the children, and medical and dental care. And the bill would be paid in full by the federal government, which is ultimately responsible for this disaster.
Under the UNHCR Emergency Handbook, “urban settings” like NYC are supposed to be the preferred alternative to refugee camps. But it’s the city’s own “right-to-shelter law” that has created the camp, and its “sanctuary city” status that ensured it would be filled. The folks at Turtle Bay may like the results just fine, but the current resident of Gracie Mansion is having second thoughts.