On January 9, the House of Representatives approved H. Res. 5, better known as the “rules package”. Among other things (such as keeping lobbyists out of the Members’ swimming pool), it sends H.R. 29, the “Border Safety and Security Act of 2023” to the floor for consideration. It’s not clear when that will happen, but that act would basically force DHS to do what it’s supposed to do already — detain all aliens who have entered illegally and attain operational control of the U.S.-Mexico line — raising the question of whether the administration should have to be forced to secure the border.
The “Border Safety and Security Act of 2023”. Unlike the massive omnibus spending bill Congress passed in December, H.R. 29 is refreshingly short — it’s less than three pages and would probably be only two were it not for the fact that all 49 cosponsors are listed at the top.
Prohibiting the Entry of Illegal Migrants to “Achieve Operational Control”. Section 2(a) of that bill gives the secretary of Homeland Security discretion to prohibit the entry of aliens at the land and maritime borders who are inadmissible under section 212(a)(7) of the Immigration and Nationality Act (INA), when “necessary in order to achieve operational control over such border”.
The referenced provision, section 212(a)(7) of the INA, renders inadmissible aliens who lack proper entry documents, a category that includes aliens who have entered illegally (if they had entry documents, they wouldn’t be entering illegally).
If the authority in section 2(a) of the bill sounds familiar, that’s because it’s akin to the authority Congress has given to the president in section 212(f) of the INA to suspend any and all alien entries, with a couple of key differences.
As I’ve explained, “section 212(f) of the INA allows the president to bar any alien whose entry he deems ‘detrimental to the interests of the United States’ on any ground”. Thus, if Joe Biden wanted to solve the border crisis, all he would need to do is issue a section 212(f) proclamation directing that any alien who enters illegally be expelled.
What’s more, there isn’t much any reviewing court could do about the president using that section 212(f) power. As the Supreme Court explained in 2018:
[Section 212(f) of the INA] exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [section 212(f) of the INA] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA.
The authority H.R. 29 would grant to the DHS secretary is more limited than the potentially sweeping power Congress gave the president in section 212(f) of the INA. Whereas the president can suspend the entry of any alien for any purpose, section 2(a) of H.R. 29 would only allow the secretary to suspend entries at the land and maritime borders, and then only to achieve “operational control”.
“Operational Control” and the Secure Fence Act of 2006. “Operational control” is a term of art, defined by section 2 of the Secure Fence Act of 2006 (SFA) through specific reference in section (d)(3) of H.R. 29.
Section 2(a) of the SFA mandates that the DHS secretary “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States”.
As the title of the SFA suggests, “all actions” includes erecting barriers along the land borders, but the SFA doesn’t restrict the secretary to just fencing off the border to achieve operational control.
The mandate that the SFA imposes on the DHS secretary is formidable, as section 2(b) of that act defines “operational control” to include “the prevention of all unlawful entries into the United States, including entries by terrorists [and] other unlawful aliens”. (Emphasis added.)
Consequently, the secretary of DHS doesn’t have much wiggle room when it comes to border security, but the current occupant of that position, Alejandro Mayorkas, hasn’t even tried to comply with the operational control mandate.
For example, in the first two months of FY 2023, Border Patrol agents apprehended more than 633,000 illegal migrants at the Southwest border, while nearly 294,000 others successfully evaded agents and entered illegally (colloquially known as “got-aways”).
The 633,000-plus aliens who were apprehended were technically “prevented” from entering unlawfully, but after they were caught, DHS released more than 47,000 of them on their own recognizance and nearly 290,000 others on “parole”.
That’s more than 337,000 illegal entrants whom DHS cut loose into the United States, and when you add in almost 294,000 got-aways, you are up to more than 631,000 instances wherein Mayorkas failed to achieve operational control, and thus failed to comply with the mandate in section 2 of the SFA — in just three months.
Detention and “Remain in Mexico”. Achieving operational control at the Southwest border is plainly a goal of the sponsors of the “Border Safety and Security Act of 2023”, but it is not the only congressional mandate in the INA sponsors are attempting to force the Biden administration to comply with.
Section 235 of the INA contains Congress’ directives for how DHS is supposed to inspect and process “applicants for admission”, that is aliens who are seeking to enter the United States.
Most aliens enter the United States lawfully, as immigrants or nonimmigrants with valid documents allowing them to be admitted to the United States. Those aliens submit to inspection at the ports of entry, present their documents, and are usually admitted as a matter of course. That inspection process is set forth in section 235 of the INA.
That same section, however, also explains — in detail — what DHS is supposed to in the case of “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted”.
Among the aliens who are “not clearly and beyond a doubt entitled to be admitted” are those without documents allowing them to be admitted to the United States and migrants caught after entering illegally (whom section 235 also de jure treats as “applicants for admission” even though they deliberately evade inspection at ports of entry).
Section 235(b) of the INA makes clear that aliens who aren’t “clearly and beyond a doubt entitled to be admitted” are supposed to be detained — from the moment they’re encountered by CBP to the point at which they are removed or, alternatively, admitted to the United States.
Aliens seeking admission who receive a final grant of asylum are admitted when the final asylum grant is issued, even if they had no documents allowing them to be admitted when they arrived. Up to that point, however, they are subject to the detention mandate in section 235(b) of the INA.
As I explained on January 5, President Trump in FY 2019 was faced with a surge in migrants at the Southwest border so large that his administration realized it lacked the detention space to hold them all.
The Trump administration’s ability to comply with the section 235 detention mandate was further impacted by a seriously flawed 2015 district court order that required DHS to release all alien children who entered illegally with adults in “family units” (FMUs) within 20 days of apprehension. To avoid “family separation”, both the adults and children were usually released.
Migrant adults (and more importantly, smugglers) realized this court order created a loophole they could exploit to enter the United States illegally and, consequently, nearly 474,000 of the 851,000-plus aliens who entered illegally in FY 2019 were in family units — 55.6 percent of the total.
Deterring adult migrants from using children as “pawns” to enter the United States illegally should be a humanitarian priority because, as a bipartisan federal panel found in its April 2019 report:
Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.
To deter adult migrants from entering with children in FMUs and to avoid violating the detention mandate in section 235(b) of the INA, the Trump administration implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.
MPP allowed DHS to return “other than Mexican” (OTM) nationals who had entered illegally at the Southwest border back across the line to await the removal proceedings at which their admissibility and eligibility for asylum would be determined.
Remain in Mexico was a success: In its October 2019 assessment of the program, DHS described MPP as an “indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly with respect to adults entering illegally with children in FMUs. Asylum claims were expedited, and aliens with weak or bogus claims simply returned home.
Despite the success and “indispensability” of MPP, then-candidate Joe Biden disparaged it and the rest of Trump’s border policies, vowing on his campaign website to end them if elected.
Biden made good on that vow, with DHS announcing on inauguration day it was suspending new enrollments in the program. In February 2021, the department revealed it would start processing the 25,000 migrants who remained in Mexico under the program into the United States.
In response, the states of Texas and Missouri filed suit in federal court in Texas in April 2021 to force DHS to keep Remain in Mexico in place. That case (Texas v. Biden) has been bouncing around the federal judiciary ever since, from district court to the Supreme Court and back again.
While Texas has been pending in the courts, however, Mayorkas has attempted to terminate MPP twice, though most recently the district court judge hearing the case issued an order on December 15 staying the second of those MPP terminations. That said, no alien has been returned pursuant to MPP since August, when 151 illegal migrants were sent back.
Section 2(b) of H.R. 29 would force Mayorkas to suspend the entry of illegal migrants and other aliens without proper admission documents unless and until DHS can either detain them in accordance with the detention mandate in section 235(b) of the INA and/or send them back across the border to await their removal proceedings, under MPP or a similar program.
Bill Does Not Bar Asylum Claims or Violate International Law. Critics of H.R. 29 contend that it bars illegal migrants from making asylum claims and violates U.S. international agreements. But it does nothing of the sort.
It’s true that if Mayorkas or one of his successors were to suspend the entry of illegal migrants under section 2 of H.R. 29, those migrants would not be able to apply for asylum in the United States. That is a significant “if”, however.
There are two condition precedents to the suspension of entry provision in the bill: (1) the DHS secretary not otherwise being able to achieve operational control of the Southwest border; or (2) DHS not having sufficient detention space to hold migrants who have crossed the Southwest border illegally and not returning illegal OTM migrants to await proceedings.
As noted, Mayorkas is already under a congressional mandate in the SFA to achieve and maintain operational control of the Southwest border, and DHS is already required under section 235(b) of the INA to detain all illegal entrants and hold them until they are admitted or removed.
Thus far the Biden administration has been able to duck those congressional mandates. In fact, even as apprehensions at the Southwest border have surged under Biden, the president (unsuccessfully) asked Congress in his FY 2023 budget request to cut detention resources.
The reason why more than 900,000 aliens crossed the Southwest border illegally in the first three months of FY 2023 alone is that the administration refuses to impose any consequences on illegal entrants.
You don’t have to trust me on this point, however, because Mayorkas admitted it on May 1 on “Fox News Sunday”. Host Bret Baier asked the secretary point blank whether it’s “the objective of the Biden administration to reduce, sharply reduce the total number of illegal immigrants coming across the southern border?”
Mayorkas’ response: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system.”
I wholeheartedly agree that we should have “safe, orderly, and legal pathways” for foreign nationals to come to the United States. There’s nothing “safe, orderly, or legal”, however, in what Biden’s doing at the Southwest border.
By mid-September, some 782 migrants had died attempting to enter the United States illegally in FY 2022. Those are just the deaths we know about, and the actual toll is likely much higher, but that figure exceeds known border deaths in FY 2020, FY 2018, and FY 2015 combined. Put differently, it’s 235 more border deaths than in FY 2019 and 2020 combined.
The toll would have been even higher had agents not carried out more than 22,000 search-and-rescue efforts in FY 2022, but the death toll does not account for an untold number of injuries, kidnappings, rapes, robberies, and assaults that migrants incurred on their way to this country.
Again, you don’t have to trust me. As then-Vice President Joe Biden explained in 2014: “These smugglers — and everyone should know it, and not turn a blind eye to it — these smugglers routinely engage in physical and sexual abuse, and extortion of these innocent, young women and men by and large.” Smugglers haven’t suddenly become angels of mercy in the interim.
Joe Biden — of all people — should understand that deterring migrants from entering illegally is an unmitigated good. He plainly also wants to ensure that asylum is available to the truly deserving. H.R. 29 would simply require both him and DHS to comply with Congress’ mandates in that process.
As for international law, article 31 of the 1951 Refugee Convention — to which the United States acceded in the 1967 Refugee Protocol — bars signatories from “impos[ing] penalties, on account of their illegal entry or presence, on refugees ... coming directly from a territory where their life or freedom was threatened”. (Emphasis added.)
Few if any OTM migrants entering the United States illegally fear persecution in Mexico — which has also acceded to the Convention and Protocol and wherein those migrants could apply for asylum.
Unaccompanied Alien Children Rep. Tony Gonzales (R-Texas), who represents the largest of all Southwest border districts, Texas 23, has focused particularly on the effect that H.R. 29 would have on unaccompanied alien children (UACs) who have entered illegally without an adult. On the January 15 edition of Fox News Sunday, Gonzales noted:
About a year ago, there were these three little girls that the cartels abandoned on one of these fields outside of Eagle Pass. If this bill were to become law, what do you do with those little girls? Do you just throw them over the other side of the fence? I don’t think that’s the American way.
Several points are in order.
First, the U.S. government is dependent on receiving countries to receive aliens who are removed or expelled from this country, and the Mexican government is under no obligation — whatsoever — to take back third-country nationals. They are particularly loath to accept OTM unaccompanied children.
That’s why there’s an entire calculus in section 241(b)(1) of the INA for DHS and adjudicators to follow in determining where to send inadmissible aliens. When I was an immigration judge, I could not simply order aliens removed — I had to order them removed to a country or countries certain.
Second, even if the Border Safety and Security Act of 2023 became law tomorrow, neither the president nor the secretary could expel OTM UACs, let alone “throw little girls over the other side of the fence”.
Section 235 of the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) requires DHS to transfer all unaccompanied children from “non-contiguous” countries (that is, every nation other than Mexico and Canada) within 72 hours to the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services, for placement with a “sponsor” in the United States (usually the child’s own parent or a close family member, who often paid to have the child smuggled in the first place).
Thanks to the TVPRA and other federal statutes, neither the detention mandate in section 235(b) of the INA — which H.R. 29 is attempting to force DHS to comply with — nor the expedited removal provisions in section 235(b)(1) of the INA apply to OTM UACs.
That might appear to set up a conflict between H.R. 29 and the TVPRA, but statutes are not read or interpreted in a vacuum. Instead, courts apply well-settled “canons of construction” in applying legislative provisions.
One is the “general/specific canon” (in Latin, generalia specialibus non derogant, or "things general do not derogate from things special"). In applying this canon, whenever there is a conflict between two provisions, one of general applicability and one that applies specifically, “the specific provision prevails”.
H.R. 29 would apply to all illegal entrants, whereas the TVPRA applies only to illegal entrants who are other than Mexican unaccompanied alien children. Consequently, those UACs would continue to be processed under the TVPRA, and H.R. 29 would be inapplicable to them.
I don’t think that Gonzales is simply making a strawman argument, however. In the course of hundreds of amendments since 1952, the INA has become like the walls in an old apartment building, where fresh paint has been applied every time new tenants moved in until switches look like globs. There are an untold number of provisions in the INA that must be applied in conjunction with or in contrast to others.
And he is correct to be concerned about the treatment of unaccompanied children. If he hadn’t made the argument, someone else would have, and by raising the issue he has allowed it to be addressed.
Popular Support. There is plainly popular support for Congress to act to secure the border.
In a recent CBS News poll, just 38 percent of respondents approved of the president’s handling of immigration, while 62 percent disapproved. That’s Biden’s worst issue showing in that poll, except for his handling of inflation and the economy.
More saliently, however, 58 percent of respondents stated that it was “very important” for Congress to do something about immigration, and an additional 32 percent deemed congressional action on immigration “somewhat important”.
Aside from crime, the economy, and inflation, immigration is the main issue that Americans expect their representatives to address.
Prospects Not Clear. That said, H.R. 29’s prospects in the House are not clear, and even if it were to pass the Democratic-controlled Senate (another big if), it’s doubtful Biden would sign it.
Neither Biden nor Mayorkas should have to be forced to secure the border, however. The fact that Congress would even be required to impose additional immigration enforcement mandates on the administration just shows how out of touch the president is on the humanitarian and national-security disaster at the U.S.-Mexico line.