I was long a lone voice in the wilderness in noting that the Immigration and Nationality Act (INA) mandates that aliens who have entered the United States illegally be detained. That point has subsequently been taken up in the halls of Congress and in the Supreme Court. Some version of that mandate has been in the immigration laws for more than 119 years, and reviewing the roots of that mandate underscores why it makes more sense every day, and why it undermines the administration’s argument that it is free to release illegal migrants.
The Immigration Act of 1903. The Immigration Act of 1903 is among the oldest U.S. immigration laws. It’s also known as the “Anarchist Exclusion Act”, because it was passed partially in response to the assassination of President William McKinley by an anarchist in September 1901.
Section 2 of that act includes some of the earliest grounds of what was then referred to as “exclusion”, barring the admission to the United States of aliens who were public charges, criminals, polygamists, prostitutes and procurers, anarchists, and who suffered from mental health issues.
To assess whether aliens were excludable from the United States on those grounds, section 24 of the Immigration Act of 1903 empowered immigration officers “to administer oaths and to take and consider testimony touching the right of any alien to enter the United States”.
Most significant for purposes of this analysis, section 24 also states: “Every alien who may not appear to the examining immigrant inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry”, appointed by the immigration commissioners at each of the ports.
That 119-year-old “clearly and beyond a doubt” standard still appears in the arriving alien inspection provisions in section 235(b)(2)(A) of the INA, except instead of whether the alien is “entitled to land”, the inquiry is now whether the alien is “entitled to be admitted”, and for good reason.
Most Aliens in the Early 20th Century Arrived by Sea. When that act was passed in March 1903, most aliens immigrated to the United States by sea. As CBP’s Border Patrol history website explains, the Border Patrol was not even established until May 1924, and although “Mounted Inspectors” at the borders were authorized by Congress in 1915 “their efforts were irregular and undertaken only when resources permitted”.
That nascent Border Patrol did not have much to do: In FY 1925, Border Patrol agents apprehended just 22,200 aliens. By contrast, on July 1, 1925, the New York Times reported that immigration officials at Ellis Island had examined approximately one million arrivals to the port of New York in FY 1924, of whom 150,000 were immigrants.
The Monetary Interests of Shipping Lines in Screening Aliens Abroad. Very few of those 150,000 immigrants who arrived at Ellis Island in FY 1924 — just 3,000 or two percent of the total — were excluded. That’s not surprising, given that shipping lines had a vested interest in screening aliens before they embarked.
Section 19 of the Immigration Act of 1903 required the owners and/or masters of the vessels on which excludable aliens arrived to return them at their own expense, and to pay the cost of those aliens’ care while they were on land. If they refused to do so, they were guilty of a misdemeanor punishable by a fine of $300 per offense — and could not leave port until the fine was paid.
The Reason Inadmissible Arriving Aliens Are Detained. It should be evident already why the Immigration Act of 1903 mandated the detention of arriving aliens at the ports of entry: They had come seeking admission to the United States, and once they were let in: (1) they received the benefits they came for, i.e., to live and work in the United States; and (2) it would be next to impossible to find them thereafter in a continental republic with a population that then totaled more than 80 million people.
While the methods by which foreign nationals have arrived in the United States have changed, that basic calculus has not. Consequently, neither has the law.
Congress compiled the then-existing immigration laws (and added a few new ones) in the Immigration and Nationality Act of 1952 — the statutory basis for the modern INA.
Section 235 of the 1952 act copied much of the inspection protocol from section 24 of the 1903 act, including the requirement that “every alien . . . who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land . . . be detained for further inquiry to be conducted by a special inquiry officer” (predecessors of today’s immigration judges).
Most significantly, when Congress lumped in illegal migrants with aliens seeking admission at the ports by replacing the concept of “excludability” of arriving aliens with “inadmissibility” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the detention mandate was expanded to three separate provisions in section 235(b) of the INA: One for illegal aliens in expedited removal pending a credible fear interview; a separate one for aliens who received a positive credible fear assessment pending their asylum hearings; and a general one for inadmissible aliens not in expedited removal.
The Biden Administration’s Attempted Dodge. Curiously, the Biden administration has attempted to use the hoary history of the detention mandate for arriving aliens to prove that it is no mandate at all.
During oral arguments in Biden v. Texas (a challenge by state plaintiffs to DHS Secretary Alejandro Mayorkas’ attempts to rescind the Trump-era Migrant Protection Protocols — MPP, better known as “Remain in Mexico”), U.S. Solicitor General Elizabeth Prelogar, arguing on behalf of the administration, was asked by Justice Breyer about the administration’s failure to comply with the mandate Congress imposed on DHS to detain illegal migrants.
As the justice explained: “I'm asking you that because the words are important.” Prelogar pushed back, arguing: “It's not as though Congress sat down at one point in time and thought this is going to be our universal solution for how to deal with these encounters at the border with this class of” aliens.
Given the fact that Congress did “sit down” when it completely revamped section 235 of the INA in IIRIRA and concluded that “this is going to be our universal solution” to illegal entries, that assertion is in error.
Further, one of the major reasons why Congress replaced “excludability” with “inadmissibility” was to reverse decades of case law that had given illegal migrants substantially more rights than aliens who were caught at the ports, the result of an unwieldy calculus known as the “entry doctrine”.
As my former colleague Immigration Judge Charles Wiegand III explained (under the header “The ‘entry doctrine’”):
In the IIRIRA, Congress sought to simplify things by creating removal proceedings which are applicable to aliens admitted to the United States, aliens applying for admission, and aliens present in the United States without being inspected and admitted. It also made the difference dependent simply on whether the alien had been admitted or not.
Prelogar is the Solicitor General of the United States, and as such is “responsible for conducting and supervising all Supreme Court litigation on behalf of the United States”.
The entry doctrine was a basic tenet of immigration law, and if Prelogar didn’t learn it in preparing Texas (which would be odd given that she referenced the Immigration Act of 1903), this change in IIRIRA was a major issue in Jennings v. Rodriguez, a 2018 Supreme Court decision dealing with the mandatory detention of aliens in expedited removal that its author, Justice Alito, referred at the oral argument in Texas.
Prelogar referenced that 119-year-old statute in the context of her argument that that the “contiguous territory return” provision in section 235(b)(2)(C) of the INA — which allows DHS to send illegal migrants back across the border to await their removal hearings and is the statutory basis for Remain in Mexico — was “only” added to the INA by IIRIRA in 1996, more than a century after the detention mandate.
The Biden Administration Argument Undermines Its Case in Texas. Given that context, Prelogar’s allusion to a 119-year-old statute and one from 1996 makes the exact opposite point of the one that she was trying to make.
To recap: Congress mandated detention for excludable aliens in 1903. That mandate was important enough for Congress to carry it over to the INA when it was first written in 1952. And when Congress eliminated the entry doctrine in 1996 to treat illegal migrants the same way it had treated excludable aliens for 93 years, it mandated their detention, too, and allowed DHS to send migrants caught at the border back to await the hearing at which they would or would not be allowed into the United States.
Border Patrol apprehended nearly 1.55 million illegal migrants in 1996. When all those illegal migrants were lumped in with the handful of theretofore excludable aliens who had presented themselves at the ports, the former INS’s detention space was going to be taxed, but Congress still required them all to be detained.
Thus, in IIRIRA Congress allowed INS and its successor DHS to (1) quickly remove most illegal migrants through expedited removal and (2) send others back across the border pending removal proceedings. As the oral arguments in Texas made clear, cross-border returns pending removal proceedings are optional, but detention of arriving aliens is mandatory.
Two Additional Points. Two additional important points close the circle.
First, as the solicitor general mentioned in oral argument, the 1952 INA gave the then-INS authority to parole arriving aliens. I detailed the flaws in Prelogar’s interpretation of that parole provision (and the amendments to that provision in IIRIRA) in a May 5 post, but briefly, the Biden administration has improperly changed U.S. policy on parole, and that change is fueling the catastrophe at the border.
Second, section 235(b)(2)(C) of the INA, which Prelogar termed the “contiguous territory return” provision (as noted the basis for MPP) does not apply to aliens in expedited removal proceedings under section 235(b)(1) of the INA found to have credible fear. Rather, it only applies to inadmissible aliens placed into “regular” removal proceedings under section 235(b)(2) of the INA.
For simplicity’s sake, I will refer to inadmissible aliens in expedited removal as “(b)(1) aliens” and those placed by DHS into regular removal proceedings as “(b)(2) aliens”. Detention is mandatory under either scenario.
When it apprehends illegal migrants at the border, DHS has the option to treat them as (b)(1) aliens or (b)(2) aliens. Here’s how that works.
Expedited removal under (b)(1) is only available for aliens who are inadmissible because they presented fraudulent documents at entry (under section 212(a)(6)(C) of the INA) or came with no documents at all (under section 212(a)(7) of the INA), the latter of which logically includes illegal entrants.
There is a separate ground of inadmissibility — section 212(a)(6)(A) of the INA — for aliens who have entered illegally. If DHS charges illegal migrants on this ground, they are (b)(2) aliens, and can be sent back under the contiguous territory return provision.
It is unclear as to why IIRIRA chose to give DHS this flexibility, but the only logical conclusion is that Congress understood there could be a large number of illegal entrants for whom detention would not be available during a surge (like the current one) and wanted to give DHS the option of sending them back.
Summary. To recap: Congress mandated in 1903 that excludable aliens who had not been admitted be detained, to prevent them from entering the United States illegally. That mandate was carried over to the INA when it was first promulgated in 1952.
In 1996, Congress replaced “excludability” with “inadmissibility” to eliminate the nonsensical “entry doctrine”, under which arriving aliens who had entered the United States illegally received more rights than excludable aliens stopped at the ports of entry. At the same time, it extended the 1903 detention mandate to illegal entrants stopped at or near the border.
In Texas, the solicitor general asserted that the 119-year history of the detention mandate undermines the states’ argument that DHS must continue to send aliens back across the border to await their removal hearings. A review of that history, however, proves the opposite. For good reason, DHS has just three choices when it apprehends an alien who has entered illegally: Detention; parole under the strict limits Congress has set; or returning back across the border to await their court dates.