What’s Biden Doing with Migrants at the Ports of Entry?

Regardless, his mass-release scheme isn’t legal

By Andrew R. Arthur on May 30, 2023

As my colleague Todd Bensman and I have both recently explained, much of the focus on what a federal judge has referred to as the Biden administration’s “overarching non-detention policy” for migrants at the Southwest border has shifted to the ports of entry — where the president is attempting to funnel those migrants into the country and hide the resulting disaster from the public. That raises the question how Biden is releasing tens of thousands of such migrants monthly through the ports — because it’s not legal.

The CBP One App Interview Scheme. Key to Biden’s latest border plans is his CBP One app interview scheme. Here’s how it works, and where it came from.

In a January 5 fact sheet titled “Biden-⁠Harris Administration Announces New Border Enforcement Actions”, the White House proclaimed that:

When Title 42 eventually lifts, noncitizens located in Central and Northern Mexico seeking to enter the United States lawfully through a U.S. port of entry have access to the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait. This new feature will significantly reduce wait times and crowds at U.S. ports of entry and allow for safe, orderly, and humane processing.

There are many misstatements of fact in that excerpt, beginning with the assertion that would-be illegal migrants could only schedule appointments for interviews at the border ports of entry once “Title 42 lifted” on May 11.

That program had already been ongoing for months when that fact sheet was issued, as Bensman revealed last November.

Codification in the CLAP. I will return to other fallacious aspects of that announcement below, but note that this CBP One port interview scheme was codified in a final regulatory rule captioned “Circumvention of Lawful Pathways” (which my colleague George Fishman helpfully shortened to “CLAP”), which was published in the Federal Register by DHS and DOJ on May 16, backdated to May 11.

Under the CLAP rule, aliens who cross the border illegally between the ports without applying for asylum elsewhere on their way here are subject to a “rebuttable presumption” that they’re not eligible for asylum and should be removed (although evidence suggests that the latter is not happening).

By contrast, aliens who “avail themselves of” what the CLAP rule terms “a lawful, safe, and orderly pathway to the United States” by applying for an interview through the CBP One app at a port of entry are processed under the normal asylum rules.

That is an important difference because few of the migrants entering the United States illegally are eligible for asylum. In the first quarter of FY 2023, less than 14 percent of asylum applications that originated in a border “credible fear” claim were granted. In more than a third (33.66 percent) of those cases, no asylum application was filed at all.

But asylum is not what most of those migrants are seeking — instead, it’s the opportunity to live and work in the United States indefinitely while their asylum cases are playing out. In early May, the New York Times reported: “The average time it takes to close an immigration case is about four years. ... But some judges say they have cases that have been pending for more than a decade.”

And then, if they are denied asylum, most of those migrants will simply disappear into the system, joining the other 11 million-plus (and climbing) illegal aliens in the United States.

All of this gives migrants the incentive to cross the first hurdle — that is being released by DHS into the United States — and the CBP One app port interview scheme makes release even more likely than simply entering illegally.

“Unlawful, Unconstitutional, and Unenforceable”. Returning to the January 5 White House press release and the May 16 CLAP rule, each contends that this funneling of migrants into the United States through the ports of entry is somehow a lawful course of entry.

Those aliens are no more “seeking to enter the United States lawfully” than a traveler who shows up at an airport gate without a ticket or an ID demanding a seat is “seeking to fly lawfully”

As noted, the January 5 press release asserts that the aliens who utilize this scheme are “seeking to enter the United States lawfully”. On May 18, I analyzed the pertinent provisions of the Immigration and Nationality Act (INA) and explained in depth why that’s not the case.

Suffice it say that those aliens are no more “seeking to enter the United States lawfully” than a traveler who shows up at an airport gate without a ticket or an ID demanding a seat is “seeking to fly lawfully”. They may be seeking entry at an official portal, but they meet none of the requirements to be let through that portal.

Similarly, the CLAP rule asserts that it “will disincentivize irregular migration and instead incentivize migrants to use safe, orderly, and lawful pathways to the United States”. Whether it is “orderly” depends on how it is implemented (and “order” at the border has never been this administration’s strong suit), but as I explained all the way back in January, it’s not “safe” in any way.

Nor is it legal, which is why the state of Texas filed suit on May 23 in Texas v. Mayorkas, arguing that it is “unlawful, unconstitutional, and unenforceable”, and asking the court to enjoin the administration from implementing it.

How’s Biden Releasing Thousands of Migrants Monthly at the Ports? Which brings me to the question of what the Biden administration is doing with those migrants who make appointments at the Southwest border ports of entry using the CBP One app.

DHS has largely clouded this process in secrecy, but using what little open-source information there is to sort through the miasma, I have determined that tens of thousands of would-be illegal migrants per month are taking advantage of the president’s CBP One app port scheme.

And more than 99 percent of those migrants are reportedly being allowed into the United States — notwithstanding the fact that none of them has the right to be here. So, how is Biden letting them in?

Here is how the process works at the ports of entry: Any alien who seeks to enter the United States — legally or illegally, and at a port of entry or across the border between the ports — is defined in section 235(a)(1) of the INA as an “applicant for admission”.

Under section 235(a)(3) of the INA, all of those applicants for admission must be “inspected by immigration officers” to determine whether they’re inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA.

Whether Biden's DHS is releasing migrants making CBP One appointments en masse on parole or on their own recognizance, it’s not legal

Aliens may be inadmissible on medical grounds, because of their criminal histories, because they are deemed to pose a threat to national security, or simply because they lack admission documents.

Specifically, such alien applicants at the ports who don’t have valid entry documents are inadmissible under section 212(a)(7)(A)(i) of the INA, and thus CBP officers cannot admit them to the United States.

Aliens deemed inadmissible at land ports of entry may allowed to withdraw their applications for admission and go back, or they can be placed into removal proceedings under section 240 of the INA, where immigration judges will determine whether they are inadmissible. Under section 291 of the INA, the burden is on the applicant for admission to prove admissibility.

If the immigration judge determines the applicant is inadmissible, the alien is then allowed to apply for “relief” from removal — in the case of an alien without admission documents, usually “asylum” or some other form of humanitarian protection.

The INA is clear, however, about what is to be done with inadmissible aliens pending those immigration judge determinations, right up front in section 235(b)(2)(A). They “shall be detained” for a removal proceeding under section 240 of the INA.

Which is not to say that DHS can’t ever release them. Under its authority in section 212(d)(5)(A) of the INA, DHS may parole “any alien applying for admission to the United States”, but “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

My colleague George Fishman, however, has explained that Congress has tightly restricted that parole authority in the INA because prior administrations have egregiously abused it in the past.

Still, those past abuses are nothing compared to the way that the Biden administration has exploited the parole authority to release hundreds of thousands of illegal border migrants into the United States.

It’s not just me saying that — Biden’s misuse of DHS’s parole power has been the basis for court decisions adverse to the administration’s catch and release policies in Florida v. U.S. (Florida I), Florida v. Mayorkas (Florida II), and Texas v. Biden.

Each of those cases, however, involved DHS releases of aliens who had been apprehended by Border Patrol agents after entering illegally — not aliens deemed inadmissible by CBP officers in the ports of entry.

Which raises the question: If tens of thousands of inadmissible aliens using the CBP One app are being funneled through the ports monthly, and more than 99 percent of them are being released, on what grounds is the Biden administration releasing them?

Parole vs. Release Under Section 236(a) of the INA. If the Biden administration is releasing those aliens on parole, it plainly is not doing so “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

As Fishman explains, few — very few — of those applicants for admission would satisfy those narrow definitions, which have traditionally only applied to aliens seeking emergency medical treatment or whose presence is required in U.S. criminal proceedings (as a witness or defendant).

And if Biden is ignoring those limitations and releasing those migrants on parole en masse, that policy is as susceptible to federal court injunction as similar policies enjoined in Florida I and Florida II. For what it’s worth, such a policy may — and I stress may — violate the courts’ orders in those two cases, exposing anyone running such a policy to a possible contempt finding.

DHS might, however, be skirting those orders by releasing CBP One port aliens under section 236(a) of the INA — which has been the administration’s mechanism of choice in releasing tens of thousands of illegal entrants notwithstanding the court’s order limiting parole releases in Florida I. Let me explain.

That section of the INA provides, in pertinent part:

On a warrant issued by [DHS], an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States [and] pending such decision, [DHS]-

(1) may continue to detain the arrested alien; and

(2) may release the alien on-

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole.

In April, Border Patrol released nearly 61,000 illegal entrants at the Southwest border under this provision on their own recognizance (OR) with Notices to Appear (NTAs), the charging documents in removal proceedings, under an arrangement called “NTA/OR”.

I’ve explained in the past that DHS lacks the authority to release illegal entrants under this provision because none of them were arrested “on a warrant” — they were warrantless arrests pursuant to Border Patrol’s explicit authority to make such arrests in section 287(a)(2) of the INA.

The judge in Florida I reached the same conclusion, noting, however, that DHS was attempting to elide that distinction by putting “administrative warrants” in alien’s A-files when it issued them NTAs and released them.

As the court there put it: “This sleight of hand — using an ‘arrest’ warrant as de facto ‘release’ warrant — is administrative sophistry at its worst.” But this arrangement was so ad hoc the judge couldn’t stop DHS from doing it.

The same is not true for CBP officers at the ports of entry. One could argue — albeit mistakenly as a factual and legal matter — that Border Patrol agents are actually arresting the illegal entrants they apprehend and therefore section 236(a) would apply.

CBP officers, however, are not “arresting” the inadmissible alien applicants they encounter at the ports of entry because they aren’t free from restraint either at the ports or during the custody that — under section 235(b)(2)(A) of the INA — should occur thereafter. In essence, aliens walk into their own detention.

This theoretical concept was a lot easier to understand in 1903 when that port-detention requirement was written, and when most of the aliens to whom it applied were walking down the gangplanks of steamships directly into port inspection stations, but as a matter of fact and law, nothing’s changed.

What’s Biden doing at the ports of entry with the migrants who have made interview appointments under his ludicrous CBP One scheme? I know that he is releasing nearly all of them, but regardless of whether he is releasing them en masse on parole or on their own recognizance, it’s not legal.