Senate Bill Wouldn’t End ‘Catch-and-Release’ — It Would Perpetuate It

What did DHS Secretary Alejandro Mayorkas tell the credulous senators who relied on his counsel?

By Andrew R. Arthur on February 13, 2024

A main selling point for the (apparently doomed) Senate border bill is that it would end “catch-and-release”. The bill not only wouldn’t end catch-and-release — a purely administrative practice that flies in the face of current congressional detention mandates for illegal migrants — it would instead perpetuate catch-and-release by making it next to impossible for any future administration to halt the border crisis by detaining border migrants. John Adams said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence”; with the second president’s advisal in mind, here are the facts.

The Claims. Hours before the Senate border bill was revealed to the public last Sunday night, CBS News summarized claims made by one of the three negotiators of that proposal on the outlet’s “Face the Nation”:

Sen. Kyrsten Sinema said on Sunday that the forthcoming border security deal that Senate negotiators have been working on for months ends the practice of catch and release, among other key provisions, providing a "disincentive for individuals to come to this country.

Sinema is an Arizona Independent who was elected as a Democrat and still caucuses with that party, but logically she would have been a reputable source for that statement — given that she was one of a handful of people with access to the bill language.

The Monday after the bill was dropped, Reuters reported:

The bill's proponents said it would end the controversial "catch-and-release" practice that critics said contribute[s] to high numbers of illegal immigrants arriving at the southern border. It would do so by speeding up the adjudication of asylum cases instead of quickly releasing apprehended migrants and allowing them to stay in the United States for years while they await hearings. [Emphasis added.]

Note that Reuters never analyzed the language to see whether it ended “catch-and-release”; it simply restated talking points offered by “the bill’s proponents”. So, what would that bill have done, and more importantly, what would it have changed?

CBP’s Two Options at the Border. Under current law, CBP has two choices on how to proceed when handling illegal migrants.

First, it can process those aliens for “expedited removal” under section 235(b)(1) of the Immigration and Nationality Act (INA). Expedited removal is a tool Congress gave the Border Patrol in 1996 to speed the expulsion of aliens entering illegally and to curb abuses of our generous asylum system by aliens simply coming to work.

Those 1996 amendments to section 235(b)(1) of the INA allow CBP to deport illegal entrants without first going to immigration court and obtaining a removal order from an immigration judge (IJ) at the end of removal proceedings — the general rule for most aliens DHS is attempting to remove.

Expedited removal, however, comes with a “catch”. Section 235(b)(1) of the INA requires CBP officers at the ports and Border Patrol agents to refer aliens subject to expedited removal who express a fear of harm if returned to asylum officers (AOs) at USCIS, for what is known as a “credible fear” interview.

“Credible fear” is defined by statute as “a significant possibility” that an alien subject to expedited removal “could establish eligibility for asylum under section 208” of the INA.

Following the implementation of that “expedited removal/credible fear” process in the late 1990s until March 2022, aliens who received a “positive credible fear determination” from an AO were referred to IJs in removal proceedings for adjudication of their asylum applications.

Last March, the Biden administration promulgated regulations allowing the AOs who had considered aliens’ credible fear claims to then adjudicate their asylum applications as well. As I’ll explain below, that’s a key point because the Senate bill would codify a version of that regulatory “AO Asylum Rule”.

CBP’s second option when dealing with illegal border migrants is to skip expedited removal and place those aliens directly into removal proceedings before IJs, an alternative process under section 235(b)(2) of the INA.

That statutory option was a critical element of the Trump administration’s Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. MPP allowed CBP to send any inadmissible alien — including illegal entrants — back across the Southwest border to await the IJ removal hearings at which they could make any asylum claims they might have.

As DHS determined in October 2019, Remain in Mexico was “indispensable” to border security and also curbed illegal entries and frivolous asylum claims by barring illegal aliens from working in the United States while their asylum claims were being heard. Aliens subject to expedited removal, however, could not be sent back under MPP; by statute, that return option is only available to CBP in cases involving aliens sent to IJ removal proceedings.

Parole and Florida I and Florida II. Regardless of whether CBP subjects illegal border migrants to expedited removal under section 235(b)(1) of the INA or to “regular” removal proceedings pursuant to section 235(b)(2) of the INA, Congress has made clear that those aliens must be detained — from the point CBP encounters them until they are either granted asylum or removed.

There are only two exceptions to those detention mandates in section 235 of the INA: return back across the border to await removal proceedings, as discussed above; or release on parole, a tightly constrained power given to DHS under section 212(d)(5)(A) of the INA.

How limited is DHS’s parole authority? By statute, the DHS secretary may parole admissible aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. “Urgent humanitarian reasons” have historically been limited to immediate medical care, while “significant public benefit” has traditionally been read to mean that the alien’s presence is required in legal proceedings in the United States.

Prior administrations have stretched that parole language for their own purposes — which is why Congress tightened the authorizing language in 1996 when it created expedited removal — but those earlier abuses had nothing on the Biden administration’s contortion of the parole authority.

In July 2021, the administration used that limited authority to create a policy known as “Parole+ATD”, which allowed CBP to release illegal border migrants on parole under section 212(d)(5)(A) of the INA subject only to (costly and ineffective) “alternatives to detention”.

Shortly thereafter, the state of Florida sued the administration to force it to comply with the detention mandates for illegal border migrants in the INA, in a case captioned Florida v. U.S. (“Florida I”). In the course of that litigation, the state discovered that DHS had released hundreds of thousands of border migrants under Biden’s Parole+ATD scheme, in violation of the INA.

The case was assigned to U.S. district court Judge T. Kent Wetherell II, who issued an order in Florida I vacating Parole+ATD on March 8, 2023.

As he explained in that order, that policy “violates the case-by-case requirement” for parole under section 212(d)(5)(A) of the INA “because although the [Parole+ATD] memo pays lip service to assessments of individual aliens, it is largely focused on DHS’s operational circumstances rather than an individual alien’s circumstances”. (Emphasis added.)

I’ll explain that key highlight below, but the judge’s point was that the administration only implemented Parole+ATD to release aliens from CBP custody as quickly as possible (within 15 to 30 minutes), not for anything having to do with aliens’ urgent humanitarian reasons or any significant public benefits.

Notwithstanding that order, two months later the administration implemented a nearly identical policy called “Parole with Conditions”, purportedly to help Border Patrol deal with an expected rush of aliens once Title 42 ended on May 11.

Florida again challenged that policy, in Florida v. Mayorkas (“Florida II), which again was assigned to Judge Wetherell.

He quickly shut down the new policy as well, sending the administration to the 11th Circuit on appeal. The administration’s request that the circuit court lift Judge Wetherell’s orders that blocked it from releasing aliens on Parole+ATD and Parole with Conditions pending appeal were denied in June, leaving the court’s parole restrictions in Florida I and Florida II in place.

Catch-and-Release. In Executive Order (EO) 13767, issued on January 25, 2017, President Trump directed the DHS secretary to “issue new policy guidance to all” DHS “personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as ‘catch and release’”.

Trump followed that up with an April 2018 presidential memorandum ordering the DHS secretary to coordinate with other cabinet officials and report back on the efforts they had taken to end catch-and-release, and specifically to ensure that parole was being used properly.

President Biden rescinded EO 13767 and revoked that presidential memorandum in EO 14010, issued on February 2, 2021.

Instead of complying with the congressional detention mandate and/or continuing to send migrants back to await their removal hearings, the administration ended Remain in Mexico (twice) while releasing — by my conservative estimate — 88.5 percent of all inadmissible aliens encountered at the Southwest border who weren’t expelled under Title 42 — some 3.3 million aliens, according to a recently adopted House resolution.

In his March 2023 opinion in Florida I, Judge Wetherell rejected the administration’s arguments that “geopolitical factors” — “climate change”, corruption, violence, poverty, etc. — are the main drivers of the subsequent border surge, instead concluding that 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.

The Senate Border Bill. The first thing the Senate border bill does is to 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” he alone gets to choose.

That latter provision is exceptional in itself, given that Judge Wetherell has determined that the current DHS secretary — Alejandro Mayorkas — has already abused his parole authority at the Southwest border. It's exceptional also because Mayorkas is facing impeachment in the House, in part, for misusing that parole power. That’s like giving a visibly intoxicated drunk free whiskey.

More significantly, however, it creates a third exception — in addition to that expanded parole power and the already existing authority to return migrants back across the border to Mexico — to the detention provisions in section 235(b) of the INA that Mayorkas could use to release even more of them.

As I recently explained, the bill would add a new section 235B to the INA, which would essentially codify the March 2022 regulatory scheme the Biden administration implemented to allow AOs instead of IJs to adjudicate asylum claims made by illegal border migrants.

That, too, is exceptional, because that Biden AO scheme is currently being challenged in federal district court in Louisiana by a group of Republican state attorneys general (AGs), including the AG of Oklahoma — home to the sole Republican negotiator of that bill, Sen. James Lankford — and the AG of Kentucky, which is represented in the Senate by Minority Leader Sen. Mitch McConnell (R).

In other words, at the same time that those state AGs are fighting to prevent the Biden AO rule from taking effect, their own senators are trying to codify it in statute.

The most exceptional aspect of that section 235B amendment to the INA in the Senate bill, however, is that it would allow Mayorkas to send illegal migrants to those section 235B proceedings based solely on “operational circumstances” and mandate that they be released, in the case of adult migrants on ATD.

That’s why I highlighted those terms in the excerpt from Judge Wetherell’s order in Florida I. It’s the same rationale Mayorkas was using to illegally release illegal migrants on parole in 30 minutes or less, using the exact same terms.

Thus, that 235B amendment would give a secretary facing impeachment for abusing the parole release authority he already has new unfettered discretion to release any illegal migrant he wants — again, the power Judge Wetherell concluded in Florida I that Mayorkas has already illegally seized for himself — based on the very same, wholly unacceptable criteria.

And yet, that section 235B amendment somehow gets worse. Unlike expedited removal under section 235(b)(1) of the INA, which requires CBP to screen applicants requesting asylum in advance of taking any other action, the screening for such claims made by aliens subject to section 235B wouldn’t be completed until up to 90 days after those aliens are released — assuming they ever reappear.

Mayorkas worked with Lankford, Simena, and a third Senate negotiator — Sen. Chris Murphy (D-Conn.) — in drafting of this bill, which raises the obvious question of whether the secretary told them about the Louisiana lawsuit, or mentioned that that the “operational circumstances” criteria justifying his mass migrant release schemes had already been defined and vacated in Florida I.

I have a feeling that if James Lankford had been told that section 3141 of the bill — which includes the mandatory release amendment in section 235B — was fundamentally identical to Parole+ATD, a Biden border scheme that has already been vacated by a federal judge, and that a federal circuit court refused thereafter to lift that order, he may not have been so willing to add that language to the bill.

Making It Harder to Ever Secure the Border. There is also a 5,000 migrant per day limit in the Senate bill, but as I have explained elsewhere that limit simply codifies the epic decline in border security that Biden has created. In the 13 years between FY 2007 and FY 2019, Border Patrol agents apprehended on average 1,354 illegal migrants per day. That 5,000 per day figure would accept a daily limit more than three times as large as the “new normal”.

Absent some massive national-security event that would bring Congress back to its senses at the border, a future president would be hard-pressed to secure the billions of dollars in new detention funding that would solve the border crisis.

Progressives hate migrant detention, while fiscal hawks would likely balk at the costs (which would only really be required in the short term). Each would point to that new section 235B authority to nix the request.

The American people should not have to wait in fear of a future terrorist attack for our federal government to recognize that border security is national security. And if members of Congress think that detention is costly or cruel, think about the costs, human and fiscal, that September 11th inflicted on our populace.

Sens. Lankford, Sinema, and Murphy all swear that the bill they negotiated with Mayorkas would end catch-and-release and secure the border, and each probably believes that to be true.

Mayorkas knows the bill would codify catch-and=release and give him with powers he has already illegally seized, while making it harder for a future president to bring the border under control. Somebody may want to ask a secretary already facing impeachment what role he played in this negotiation, and what he told the credulous negotiators who relied on his counsel.