Rep. Fitzpatrick (R-Pa.) Offers Bipartisan Alternative to Senate Border Bill

Five positive provisions and one convoluted exception

By Andrew R. Arthur on February 22, 2024

On February 15, Rep. Brian Fitzpatrick (R-Pa.) introduced H.R. 7372, the “Defending Borders, Defending Democracies Act” (DBDA) as an alternative to a poorly understood, deeply flawed, and yet widely lauded Senate border bill. In addition to Fitzpatrick, DBDA has nine cosponsors — four Republicans and five Democrats — and while it’s much better than what came out of the upper chamber, it’s still not perfect. Here’s how it works — and how it doesn’t.

Brevity Is a Virtue. The first advantage this bill has over its Senate counterpart is brevity — H.R. 7372 runs just 30 pages — and just fewer than 10 are immigration-related; the rest is military funding.

Compare that to the Senate bill, which runs 370 pages — 180 of which are immigration-related. In addition to the widely discussed (if usually misrepresented) provisions therein, those 180 pages include a section mandating the reeducation of Border Patrol agents on subjects like “de-escalation training”, “identifying, screening, and responding to vulnerable populations”, and “relevant cultural, societal, racial, and religious training, including cross-cultural communication skills”. And that’s just for starters.

As Shakespeare explained in “Hamlet”, “brevity is the soul of wit”, but more importantly it’s a virtue in the legislative process because it allows members to actually see what they are being asked to support. Points to Fitzpatrick on this score.

“Temporary Expulsion of Inadmissible Aliens”. The first provision, section 101, in H.R. 7372 is captioned “Temporary Expulsion of Inadmissible Aliens”, and the best way to describe it is as a combination of Title 42 and expedited removal under section 235(b)(1) of the Immigration and Nationality Act (INA).

Expedited removal allows CBP to deport “aliens seeking entry” (including illegal migrants) without proper entry documents without first obtaining a removal order from an immigration judge — a statutory requirement in most other cases.

The “catch” in that expedited removal scheme — which has become a fatal flaw under the current administration — is that section 235(b)(1) requires CBP to send aliens claiming a fear of harm if they are sent back home to asylum officers (AOs) at USCIS for “credible fear” interviews to determine whether their protection claims have merit.

Claiming that it lacks both sufficient AOs to perform credible fear interviews and detention space, the Biden administration has generally skipped expedited removal entirely and released most aliens in violation of the law, which smugglers and would-be migrants view — likely correctly — as an invitation to come here illegally, compounding and perpetuating the border crisis.

While expedited removal is discretionary, expulsion under Title 42 was mandatory for any alien who lacked proper travel documents and was encountered by CBP at a port or entering illegally. Aliens expelled under Title 42 were not formally removed, however — they were simply sent back.

As with Title 42, section 101 of H.R. 7372 directs the expulsion of aliens encountered by CBP at the Southwest border without proper documentation for one year from the date of enactment. As I’ll explain below, however, other sections of the bill combine that expulsion mandate with a stricter form of credible fear.

From a border security perspective, however, that’s a significant improvement over the Senate bill, which would mandate the release of illegal migrants claiming a fear of harm based solely on undefined “operation circumstances” — the very same excuse Biden’s DHS has used as justification for the administration’s “catch and release” protocols.

“Countries to Which Aliens May Be Expelled” and “Remain in Rwanda”. The purpose of Title 42 was to prevent the spread of Covid-19, both into the United States as a whole and as importantly, to other migrants in detention and to the DHS officers with whom those migrants interacted.

Expulsion under Title 42 enabled DHS to limit the time those aliens spent in “congregate settings” (DHS processing and detention), but its success depended on the willingness of the Mexican government to take “other than Mexican” (OTM) migrants back.

Following the 2020 election, Mexico became much choosier about the OTMs the country would accept, first refusing to take back adults travelling with children in “family units” (FMUs), and then barring the reentry of OTM adults other than those from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras.

Smugglers quickly latched onto these loopholes, which is why the number of aliens entering illegally in FMUs and “other than Northern Triangle” (ONT) adults quickly rose in FY 2021 and 2022.

Section 102 of H.R. 7372 responds to this “new normal” of illegal migration under Biden by allowing DHS to expel undocumented migrants encountered at the Southwest border first to Mexico, and if Mexico won’t accept them, to their country of nationality, the country where they were born or have a residence, or to any other country that will take them.

On that latter point, this exclusion plan — perhaps inadvertently — resembles a thus-far unimplemented proposal in the United Kingdom to send illegal migrants who arrive by sea directly to the central African country of Rwanda, which my colleague Mark Krikorian has christened “Remain in Rwanda”.

Section 102 of the Fitzpatrick bill also tracks section 241(b)(1) of the INA, which allows DHS to designate secondary countries of removal for arriving aliens (who are otherwise ordered returned to the last country they were in prior to arrival). That section was likely the model for the language in the DBDA.

While it may seem far-fetched to think a third country would accept excluded OTMs/ONTs, in reality, the removal of aliens to such countries both occurs currently (albeit on a limited scale) and there is recent precedent for such a plan.

In 2019, the Trump administration negotiated “asylum cooperative agreements” (ACAs) with the three Northern Triangle countries under which each would accept third-country nationals who had crossed the Southwest border illegally and claimed a fear of harm if returned back home.

Those ACAs, however, were scuttled by the pandemic, and once Biden took office, his State Department quickly withdrew from those agreements.

The full details of how those ACAs were hammered out have never been disclosed, but knowing the Trump administration, the State Department likely offered trade incentives and/or assistance cash in exchange for each of those countries’ agreement to take third-country migrants.

The Biden administration, which has long been eager to send tax dollars to those countries to address what it terms the “root causes” of illegal migration, may take a similar tack, and if section 102 of H.R. 7374 were to be implemented, the State Department would have even greater incentive to do so.

“Restriction on Expulsion”. Which brings me to the credible-fear aspect of the expulsion mandate in the House bill. Section 102(c) of H.R. 7372 would restrict the expulsion of undocumented Southwest border migrants to any of those countries of return — again, Mexico; the aliens’ country of nationality, birth, or residence; or a third country — if those aliens establish that they’d face persecution or torture in those countries.

If properly implemented, subsection (c) wouldn’t be the loophole that credible fear has become, or an exception that would swallow the section 101 expulsion rule that it might appear to be. That’s because it actually creates a heightened credible-fear screening standard that proponents of the Senate bill claim — erroneously — would be a key benefit of that legislation.

Briefly, aliens may be granted asylum under section 208 of the INA if they show a “well-founded fear” of persecution on account of one of five factors: race, religion, nationality, membership in a particular social group, or political opinion.

Poverty, corruption, and crime — without more — don’t satisfy that definition, but the well-founded fear standard isn’t otherwise a high bar for aliens to cross. As the Ninth Circuit has held: “Even a ten percent chance of persecution may establish a well-founded fear”. And given that the credible fear standard in section 235(b)(1) of the INA is lower than the asylum standard, it’s even less of an impediment to aliens with weak or bogus asylum claims.

Asylum isn’t the only humanitarian protection U.S. law offers removable aliens, however. Aliens under removal orders who show it’s “more likely than not” they’ll be persecuted on account of any of those five factors are also eligible for withholding of removal under section 241(b)(3) of the INA (“statutory withholding”), while aliens who have been ordered removed who establish they’ll will be tortured if removed may seek withholding of removal under the Convention Against Torture (CAT).

Both statutory withholding and CAT are country-specific: Aliens granted those protections are removable, but they can’t be deported to a country from which removal has been withheld. That said, they can be removed to any country that will take them in which they won’t be persecuted or tortured.

Section 102(c) of the Fitzpatrick bill creates a process like credible fear in which aliens claiming they’d be persecuted or tortured if expelled would be interviewed by AOs to determine whether they meet the actual standards for statutory withholding and CAT — not a lesser version of those standards in the way that “credible fear” is to a “well-founded” one.

The actual impact of that provision would only be as good as the Biden administration makes it, though, which is why I prefaced my analysis above with the clause “if properly implemented”. Still, credible fear is a significant and widely exploited loophole, and on paper, at least, section 102(c) would close it.

Note also that not only would those aliens be required to show it’s more likely than not that they would be persecuted or tortured in their home countries to avoid expulsion, but they’d also have to prove they’d be persecuted or tortured in Mexico or any third country to which they might be sent.

Again, if properly implemented, that would significantly limit the incentives would-be migrants currently have under the Biden administration to come here illegally and wait, free from detention, for the four years or more it would take to resolve their asylum claims.

“Authority to Suspend Entry of Aliens at the Border”. I’ll skip section 103 of the bill for a moment to go to section 104, which gives the DHS secretary “authority to suspend entry of covered aliens at” any border — land or maritime — if he “determines, in his discretion” that such suspension is necessary “to achieve operational control over such border”.

The term “covered aliens” is defined as any alien who lacks proper entry documents, and there are two reasons why that provision may sound familiar. First, that authority is similar to the power Congress has given the president in section 212(f) of the INA to suspend the entry of any alien — documented or not — into the United States.

Second, that “operational control” language refers back to a duty Congress imposed on the secretary in the Secure Fence Act of 2006 (SFA) “to achieve and maintain operational control over the entire international land and maritime borders of the United States”.

The SFA in turn defines “operational control” as: “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”. (Emphasis added.)

Section 104 of DBDA both delegates a variation of that section 212(f) authority down to the secretary and ties it directly to that SFA mandate. Unlike the expulsion mandate in section 101 of the bill, which expires after a year from the date of enactment, that section 103 suspension authority would provide additional border security not only to this administration, but to a future one — assuming it survives judicial challenges — which would be sure to follow — as implemented.

“Limitation on Use of Federal Funds to Move Aliens”. Big-city mayors struggling with their own migrant crises and those opposed to using taxpayer cash to funnel border migrants into the interior should cheer section 105 of the bill, which bars the use of federal funds “to transfer or otherwise move an alien in the custody of the Federal Government from a facility in which such alien was first detained to another location for a purpose other than adjudicating such alien’s status”.

That would prevent the administration from buying bus and plane tickets to move aliens from the border to their final destinations in the United States, and also bar it from giving money to NGOs for such purposes. That restriction could, and likely would, adversely affect border states like Texas, but it would also remove yet another incentive for aliens to enter illegally.

“Treatment of Aliens Arriving from Contiguous Territory” — Mandatory “Remain in Mexico”. The DBDA saves the best for last, at least from a border-security perspective. Section 106 simply strikes the word “may” in section 235(b)(2)(C) of the INA and inserts the word “shall”. Here’s how it would read with that amendment:

In the case of [an inadmissible alien] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may shall return the alien to that territory pending a [removal] proceeding under section 240 of the INA.

That INA provision was the statutory basis for the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

When the states of Texas and Missouri sued to force the Biden administration to reimplement that Trump-era policy (in Texas v. Biden), however, the Supreme Court rejected their claims, holding that cross-border returns under section 235(b)(2)(C) were discretionary, not mandatory. This amendment would remove that impediment.

As with the expulsion provision in section 101 of H.R. 7372, however, returns would be dependent on the Mexican government’s willingness to accept OTM returns. Consequently, the success of this mandate would depend on the administration’s commitment to engage with Mexico City to secure that country’s assent to accept returns. This amendment may force its hand.

“Waiver Authority”. Which brings me to section 103 of H.R. 7372, captioned “Waiver Authority”.

At the outset, I note that this section — divided into three subsections, (a), (b), and (c) — is the most poorly drafted immigration-related provision in the DBDA. Aside from the title, there’s no “waiver”, and to the degree one can be inferred from the text, it’s in subsection (c), which states:

An immigration officer, after approval from the Commissioner of [CBP] may, on a case-by-case basis, except an alien from expulsion based on the totality of the circumstances, including consideration of significant law enforcement officer, public safety, humanitarian, and public health interests. An alien who has been excepted from expulsion under this subsection shall be processed in accordance with the immigration laws (as defined in section 101(a)(17) [of the INA]).

It’s not clear how that exception would be applied, however, and the problems start with the first clause.

The term “immigration officer” isn’t defined in the DBDA, but it is broadly (and circularly) defined in section 101(a)(18) of the INA as “any employee ... designated ... to perform the functions of an immigration officer”. Can any of them “except” an alien from expulsion? Maybe, but probably not.

That’s because section 103 only applies to arriving aliens subject to inspection under section 235 of the INA, and that provision uses the term “immigration officers” more narrowly, to refer only to CBP officers in the Office of Field Operations (“OFO”) at the ports, Border Patrol agents, and AOs.

AOs, however, are in USCIS, and given that approval for exceptions to expulsion under section 103(c) of DBDA comes from the CBP commissioner, the drafters likely intended that authority to apply only to the “immigration officers” at CBP — that is, CBP officers at the ports and Border Patrol agents.

Even assuming that only CBP officers and Border Patrol agents can seek exceptions from expulsion, however, it’s still not clear how that exception process would work. Do those field officers have to go to the CBP commissioner — the head of a massive agency — every time they want to “except” an alien from expulsion, or can the commissioner issue a blanket exception and leave it to each officers’ judgment?

If it’s the latter, the “waiver” in section 103(c) would swallow the expulsion rule in section 101, at least as long as Joe Biden is president, because that’s more or less what CBP has been doing with respect to expedited removal for the last three years — exempting migrants from removal under that provision in the name of “public safety”, “humanitarian”, and “public health interests”.

Reading section 103 of H.R. 7372 as a whole, however, it appears — and I stress “appears” — the drafters intend that section 103 “waiver” authority to apply only to inadmissible aliens at the ports, not to aliens who cross the border illegally between the ports.

That’s because section 103(a) of the bill directs “port director[s]” (PDs) — OFO officials in charge of each individual port — to determine how many aliens can be “safely process[ed]” at their ports daily and then placed “with nongovernmental organizations [NGOs] to provide short term shelter and services”.

That PD determination is plainly limited to inadmissible aliens because aliens must prove (among other things) they wouldn’t need NGO assistance once they are admitted lawfully, but instead are self-sufficient.

The conclusion that “waivers” are only available to illegal aliens at the ports (and not to illegal entrants) is given further support by section 103(b) of DBDA, which directs the PDs “to safely and humanely identify eligible individuals in the United States”, after “giving priority to individuals who — (1) have a disability or an acute medical condition; (2) are in need of advanced medical care that cannot be obtained in their current location; or (3) are described in section 102(c)”.

As noted, section 102(c) of DBDA provides an exception to expulsion for aliens who satisfy the standards for statutory withholding or for CAT. Aliens with acute medical conditions and those in need of advanced medical care in the United States are already eligible for parole at the ports under section 212(d)(5)(A) of the INA, but that provision does not apply to aliens with disabilities, per se.

If all of this is confusing, that’s because — respectfully — section 103 is a mess. Both the Trump and Biden administrations implemented special asylum rules to discourage undocumented aliens from entering illegally and to avail themselves of the ports instead, and the drafters of DBDA appear to be trying to codify something similar into statute while limiting the number of aliens who appear at the ports daily.

The drafters should stop beating around the bush, however, if that is their goal. That said, this bill likely wouldn’t have five Democratic cosponsors if its intentions were clearer. The problem is that it would be up to the Biden administration to draft the rules implementing this provision — and its track record when it comes to border security leaves a lot to be desired.

Summary. From a border security perspective, there are five positive provisions in the Fitzpatrick bill and one convoluted exception that would likely be even worse in practice than it is on paper — and even the paper version isn’t great. That said, H.R. 7372 is a good starting place for border negotiations because it does much of what proponents of the Senate border bill claim — erroneously — that proposal would do. And it does it in 170 fewer pages.