Summary
The Senate recently defeated Sen. James Lankford’s ill-begotten “Border Act” on a procedural vote. The measure was relaunched as a Democratic bill, as it should have been all along, and opposed by all but one Senate Republican, as it should have been all along.
The “Border Act” contains over 20,000 words, 20,732 by my count. Let’s start on a positive note. I have personally identified 149 words in the legislation that I could work with to help curtail the Biden/Mayorkas border fiasco. Among those words are “Whenever ... border emergency authority is activated, the Secretary shall have the authority, in the Secretary’s sole and unreviewable discretion, to summarily remove from and prohibit, in whole or in part, entry into the United States of any alien [OK, with exceptions] who is subject to such authority.” This “summary removal” authority could be a quite effective replacement for Title 42 expulsions.
Unfortunately, in addition to those 149 words of note, the Border Act contains 20,583 other words that range from benign to malignant. I will focus on the 2,835 words purposefully designed to enfeeble the Act’s own summary removal power:
- First, 197 words limit the use of summary removal to only instances of the worst Biden-ian inundation of the border.
- Second, even during such emergency conditions, 776 words cut off the availability of summary removal after an arbitrary number of days.
- Third, even during such emergency conditions, 36 words set the summary removal power to self-destruct (“sunset”) after three years.
- Fourth, even during such emergency conditions, 58 words demand that DHS escort 1,400 inadmissible aliens a day — over 500,000 a year — into the United States through ports of entry, in violation of the rest of our duly enacted immigration laws.
- Fifth, even during such emergency conditions, 106 words forbid the use of summary removal to remove unaccompanied aliens under the age of 18.
- Sixth, even during such emergency conditions, 331 words grant aliens subject to summary removal a “get out of removal free card”, the same sort of card that has turned the expedited removal authority into expedited release onto our streets.
- Seventh, even during such emergency conditions, 85 words allow DHS to ignore summary removal at its whim.
To summarize, these 2,835 words — acting like a fifth column to sabotage the “Border Act’s” summary removal authority from within — border on insanity.
There is a bill that actually gives DHS a robust summary removal power. It is the House-passed “Secure the Border Act” (H.R. 2).
Introduction
The Senate recently defeated Sen. James Lankford’s (R-Okla.) ill-begotten “Border Act” on a procedural vote. The measure was relaunched as a Democratic bill (S. 4361), as it should have been all along, and opposed by all but one Senate Republican (Lisa Murkowski, R-Alaska), as it should have been all along.
Catherine Rampell, writing in the Washington Post, facetiously asks us to “Pity poor Sen. James Lankford ... who ... was humiliated into voting against his own border security bill”. Sen. Lankford was apparently chastened by widespread conservative blowback over his proposal, including Oklahoma County (the state’s most populous county) Republicans’ vote to censure him. Sen. Christopher Murphy (D-Conn.), who had helped negotiate the Border Act and who introduced the defeated bill, had exclaimed in February after many Senate Republicans had abandoned their support for it that “They reacted to it like it was a poison. I think it’s unforgiveable what they did to James.”
Sen. Lankford had taken part in negotiations with Murphy, Sen. Krysten Sinema (I-Ariz.) and impeached Secretary of Homeland Security Alejandro Mayorkas. The Border Act contains over 20,000 words, 20,732 by my count (at least it did in February). Let’s start on a positive note. I have personally identified 149 words that are indeed ... helpful! I could work with those 149 words to help curtail the Biden/Mayorkas border fiasco.
Good Words
Only 149 words, you might ask? But what words they are! Keep in mind that President Lincoln’s Gettysburg Address was only 272 words long. Anyway, here are the bulk of the golden words:
Whenever ... border emergency authority is activated, the [DHS] Secretary shall have the authority, in the Secretary’s sole and unreviewable discretion, to summarily remove from and prohibit, in whole or in part, entry into the United States of any alien [OK, with exceptions] who is subject to such authority. [Emphasis added.]
Notwithstanding any other provision of th[e Immigration and Nationality Act (INA)] ... the Secretary shall issue a summary removal order and summarily remove an alien to the country of which the alien is a subject, national, or citizen ... or in accordance with the processes established under section 241 [of the INA], unless the summary removal of the alien to such country would be prejudicial to the interests of the United States.
Summary removal. This sounds a lot like Title 42’s expulsion authority that was used to great effect during the Covid pandemic (at least during the Trump administration) to bring order to the border. Title 42 allowed DHS to bypass Title 8’s expedited removal/credible fear process in order to swiftly expel aliens seeking to enter the U.S. illegally. The Title 8 process has degenerated to the point that the large majority of illegal aliens apprehended at the border who want to establish a “credible” fear of persecution and be released into the U.S. by Secretary Mayorkas’s DHS (despite Congress’s mandate that they be detained) succeed in doing so, resulting in an increased incentive for illegal immigration, as even Mayorkas himself has admitted. In summary, I like the concept of “summary removal”.
Not So Good Words
Unfortunately, in addition to these 149 goods words, the “Border Act” contains 20,583 other words, which range from benign to malignant. My colleague Mark Krikorian has evaluated some of the malignant provisions. Let me focus on the 2,835 words purposefully designed to sabotage the “Border Act’s” own summary removal power.
First, 197 words are designed to limit the use of summary removal only to times of the most extreme Biden-ian inundation of the border.
The Border Act provides that:
The Secretary may activate the border emergency authority if, during a period of 7 consecutive calendar days, there is an average of 4,000 or more aliens who are encountered each day.
The Secretary shall activate the border emergency authority if— (i) during a period of 7 consecutive calendar days, there is an average of 5,000 or more aliens who are encountered each day; or (ii) on any 1 calendar day, a combined total of 8,500 or more aliens are encountered.
Wait one New York minute! DHS can only utilize the summary removal power if illegal aliens are arriving at the rate of 1,460,000 a year (on average)?! And DHS is only required to utilize summary removal if illegal aliens are arriving at the rate of 1,825,000 a year (on average), or at the rate of 3,102,500 a year?! Our nation has never experienced such yearly levels until the Biden/Mayorkas border fiasco. Let me borrow a chart from my colleague Andrew Arthur:
Figure 3. Average Daily Southwest Border Patrol Apprehensions, by Fiscal Year |
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Arthur has written that this “‘5,000 a day’ rule would ... concede[] defeat at the border” and “accept the dismal status quo at the Southwest border as the new standard, forever, or at least until Congress is forced to act again”, “resign[ing] Congress and the country to the idea that 1.825 million aliens pouring over the Southwest border per year is the ‘new normal’, and that there’s nothing this administration can do about it”. He has further explained that:
[A]verage daily apprehensions in the 14-year period prior to Joe Biden taking office topped 2,350 only once ... . They neared that record in FY 2019, when an average of 2,333 aliens were apprehended entering illegally per day.
Border Patrol apprehensions at the Southwest border have jumped from a daily average of just over 5,600 in FY 2023 to nearly 6,850 in the first three months of FY 2024.
Any objective observer would have to agree that border security is worse under Biden than under any other previous administration. Instead of 5,000, perhaps the negotiators could have settled on 1,354, the average number of daily apprehensions in the 13-year period between FY 2007 and FY 2019, or even 2,000, roughly the average for the period FY 2007 to FY 2023.
Why in the world would Sen. Lankford want to so preposterously limit the use of the summary removal power? To reach a deal with the Biden administration and congressional Democrats at all costs? Or were he and his staff bamboozled by those very same Democrats? Or does he really believe the summary removal power to be so morally bankrupt that he can only tolerate its use during tsunami-like conditions?
Second, even during such emergency conditions, 776 words cut off the availability of the summary removal power after an arbitrary number of days.
The Border Act provides that:
[T]he Secretary shall not activate the border emergency authority ... during the first calendar year after the effective date, more than 270 calendar days ... during the second calendar year ... for more than 225 days ... [or] during the third calendar year, for more than 180 calendar days.
Why in the world would Sen. Lankford wire the floodgates to automatically open, no matter the height of an approaching wave? Does he really believe the summary removal power to be so morally bankrupt that he can only tolerate its use for a certain number of days each year?
Third, even during such emergency conditions, 36 words set the summary removal power to self-destruct (“sunset”) after three years.
The biill includes the following:
(j) SUNSET.—This section— ‘‘(1) shall take effect on the date of the enactment of this section; and ‘‘(2) shall be repealed effective as of the date that is 3 years after such date of enactment.
Why in the world would Sen. Lankford wire the floodgates to self-destruct, no matter the height of an approaching wave? Does he really believe the summary removal power to be so morally bankrupt that he can only tolerate its use for a certain number of years?
Fourth, even during such emergency conditions, 58 words demand that DHS escort 1,400 inadmissible aliens a day — over 500,000 a year — into the United States through ports of entry, in violation of the rest of the duly enacted immigration laws.
The “Border Act” provides that:
During any activation of the border emergency authority ... the Secretary shall maintain the capacity to process, and continue processing ... a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry in a safe and orderly process developed by the Secretary.
A “safer and orderly process” is an homage to Secretary Mayorkas’ so-called “lawful” — but actually unlawful — “pathways”, designed, in Mayorkas’ own words, to allow inadmissible aliens “to come ... without resorting to the smugglers”. As I have written in the New York Post, what this really means is that:
[F]oreigners who don’t qualify under our generous to-a-fault immigration laws ... no longer need to break [them]. Why not? Because the Biden administration will do the law-breaking for them ... through Orwellian “lawful pathways” ... . “dark” immigration law passed not by Congress but created by the Executive Branch, usually for the express purpose of circumventing Congress.
We are talking circumvention of the law by Secretary Mayorkas on such a massive scale that it constituted part of the basis for his articles of impeachment:
Alejandro N. Mayorkas willfully exceeded his parole authority ... in that ...
[He] created, reopened, or expanded a series of categorical parole programs never authorized by Congress for foreign nationals outside of the United States, including for certain Central American minors, Ukrainians, Venezuelans, Cubans, Haitians, Nicaraguans, Colombians, Salvadorans, Guatemalans, and Hondurans, which enabled hundreds of thousands of inadmissible aliens to enter the United States in violation of the laws enacted by Congress.
As the House Committee on Homeland Security’s impeachment report explained:
Secretary Mayorkas has allowed hundreds of thousands of inadmissible aliens to enter the United States pursuant to various categorical parole programs, in violation of the terms of the parole statute. In FY 2023 alone, DHS granted parole to 83,294 Haitians, 65,177 Venezuelans, 49,208 Cubans, and 36,334 Nicaraguans under those countries’ categorical parole programs. In addition, CBP officials at Southwest border ports of entry processed 281,148 CBP One appointments just in the January-September 2023 period.
As to the CBP One application, Secretary Mayorkas explained that:
[W]e are creating an appointment system for individuals to seek entry at our ports of entry ... . [T]his can be done on one’s smart phone with an app called CBP One. The app is designed to discourage individuals from congregating near the border and creating unsafe conditions ... . [T]his scheduling mechanism will be available for noncitizens, including those who seek to claim asylum, to schedule a time to present themselves at a port of entry for inspection and processing, rather than arriving unannounced at a port of entry or attempting to cross in-between ports of entry. Those who use this process will generally be eligible for employment authorization while they are in the United States.
Based on Secretary Mayorkas’ description, the CBP One application has facilitated entry into the United States by granting parole to hundreds of thousands of inadmissible aliens, and they do not even have to claim asylum.
Todd Bensman at the Center for Immigration Studies revealed that:
From January through September 5, 2023, DHS vetting resulted in only 698 rejections for unspecified ‘‘Ineligibility Reasons’’ out of 225,000 invited to cross the border into the United States, according to new records obtained by the Center for Immigration Studies through ongoing FOIA litigation against U.S. Customs and Border Protection (CBP).
That number — 698 [represents] 0.31 percent of total applicants.
So, the vast majority of aliens attending CBP One appointments received a grant of parole or other type of relief. At the very least, during fiscal year 2023, 266,846 aliens were granted parole through CBP One, according to data provided by DHS to the Committee. Thus, in FY 2023 alone, DHS granted parole to over 810,000 aliens through unlawful categorical parole programs.
Why would Sen. Lankford want to not only give Secretary Mayorkas carte blanche to engage in these abuses, but to actually require DHS to do so? Does he really believe the summary removal power to be so morally bankrupt that he can only tolerate its use if cojoined with DHS back-dooring into the U.S. at least 1,400 inadmissible aliens a day?
Fifth, even during such emergency conditions, 106 words forbid the use of summary removal to remove unaccompanied aliens under the age of 18.
The Border Act provides that “The border emergency authority shall not be activated with respect to ... [a]n unaccompanied alien child [UAC].” Such an exemption will only encourage more unaccompanied minors to come to the U.S. illegally, a journey that DHS and the Department of Justice (DOJ) have described as “long, arduous, and extremely dangerous” and “bring[ing] with it a great risk of harm”. The articles of impeachment against Secretary Mayorkas state:
During Alejandro N. Mayorkas’s tenure as Secretary of Homeland Security, approximately 450,000 unaccompanied alien children have been encountered at the Southwest border, and the vast majority have been released into the United States. As a result, there has been a dramatic upsurge in migrant children being employed in dangerous and exploitative jobs in the United States.
The House Committee on Homeland Security’s impeachment report also disclosed the danger this mass influx of unaccompanied minors has posed to communities in the United States:
[T]he influx of UACs has empowered the violent gang, Mara Salvatrucha (MS-13), to deploy an aggressive recruitment scheme aimed at targeting these young children, who often cross the border alone ... . ‘‘MS-13 preys on the vulnerability of the unaccompanied minors ... . Members of MS-13 seek out vulnerable young girls using violence and other coercive tactics to intimidate these girls into having sex for money to help financially support the gang.’’ During a law enforcement roundtable hosted at the White House in 2018, Angel Melendez, Homeland Security Investigations ... special agent in charge for New York, said that [U.S. Immigration and Customs Enforcement] routinely finds that 30 percent of MS-13 members they arrest came into the country as UACs. Agent Melendez also confirmed that MS-13 was, ‘‘looking at unaccompanied alien children that came into the states as potential recruits to continue to fill in their ranks.’’
Why would Sen. Lankford want to exclude unaccompanied minors from the summary removal procedure? Does he really believe the summary removal power to be so morally bankrupt that he cannot countenance its use to remove teenage gang members or future gang members?
Sixth, even during such emergency conditions, 331 words grant aliens subject to summary removal a “get out of removal free card”, the same sort of card that has made a mockery of the current expedited removal process.
As I have mentioned, the prime benefit of DHS’s use of its Title 42 authority was that DHS could bypass Title 8’s expedited removal/credible fear process that allows so many illegal aliens apprehended at the border to establish a “credible” fear of persecution and be released. As DHS and DOJ have explained:
When the expedited [removal] procedures were first implemented ... relatively few aliens [apprehended at the border] ... asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens ... were single [Mexican] adults who were immediately repatriated.
...
In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... and are subsequently placed into removal proceedings in immigration court ... . Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in ... 2008 to about 97,000 in ... 2018. ... In FY 2018 ... positive credible-fear determinations [by asylum officers, preventing the expedited removal of the aliens and sending them to immigration court] climbed to about 89% of all cases. [Yet] significant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases ...) established that they should be granted asylum.
Indeed, Secretary Mayorkas has himself admitted that:
[M]any individuals who avail themselves of the credible fear process do not have meritorious claims [for asylum].
[M]ost people processed for expedited removal ... will likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum.
[T]he fact that migrants can wait in the United States for years before being issued a final order denying relief, and that many such individuals are never actually removed, likely incentivizes migrants to make the journey north.
Yet, despite this sobering experience, the Border Act insists that such a compromised process be part of summary removal, providing that:
In the case of an alien subject to the border emergency authority who manifests a fear of persecution or torture with respect to a proposed country of summary removal, an asylum officer ... shall conduct an interview, during which the asylum officer shall determine that, if such alien demonstrates during the interview that the alien has a reasonable possibility of persecution or torture ... the alien ... shall not be summarily removed; and ... shall instead be [placed in removal proceedings].
Now, it is true that the legislation somewhat softens this blow by requiring an alien to demonstrate a “reasonable possibility” of persecution or torture (described by DHS and DOJ as “whether the applicant’s fear is based on facts that would lead a reasonable person in similar circumstances to [have that] fear”), which represents a higher burden than in demonstrating a “credible fear” (“a significant possibility ... that the alien could establish eligibility for asylum”). However, it is hardly stringent enough to keep the “summary” in summary removal. If there must be a such a process embedded in summary removal, aliens must be required to demonstrate the ultimate eligibility standard for withholding of removal (“more likely than not”).
To add insult to injury, the Border Act mandates that aliens who manifest a fear and are placed in its newfangled “protection merits removal proceedings” cannot be detained. Not that Secretary Mayorkas’s DHS is detaining aliens placed into expedited removal proceedings as the law requires, but the legislation actually mandates their release.
The failure to detain aliens subject to mandatory detention constitutes another part of the basis for the articles of impeachment against Secretary Mayorkas. As the House Committee on Homeland Security’s impeachment report found:
Secretary Mayorkas’ willful and systemic refusal to comply with detention mandates prevents DHS from effectively removing illegal aliens from the United States and incentivizes more illegal aliens to come to the United States. Congress put these detention mandates in place primarily because, as the Supreme Court has explained ... ‘‘one of the major causes of the ... failure to remove deportable ... aliens was the agency’s failure to detain those aliens during their deportation proceedings.’’ DHS itself verified Congress’s concerns in its FY 2021 Enforcement Lifecycle Report, that amply demonstrated that (regarding aliens encountered at the Southwest border) continuously detained aliens have historically almost always been repatriated, while nondetained aliens have rarely been[.]
Moreover, in mandating detention at the border, Congress understood that a lack of consequences, such as detention, incentivizes illegal immigration.
Why would Sen. Lankford want to build the mistakes of expedited removal into summary removal? Why would he want to forbid detention, the only mechanism that actually ensures that aliens ordered removed are actually removed? Does he really believe the summary removal power to be so morally bankrupt that it must be sabotaged from within?
Seventh, even during such emergency conditions, 85 words allow DHS to disregard summary removal at its whim.
The Border Act provides that:
The border emergency authority shall not be activated with respect to ... [a]n alien who an immigration officer determines, with the approval of a supervisory immigration officer, should be excepted from the border emergency authority based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests, or an alien who an immigration officer determines, in consultation with [ICE], should be excepted from the border emergency authority due to operational considerations.
Why would Sen. Lankford want to allow the Biden administration and impeached Secretary Mayorkas to disregard summary removal at their whim, even when his own Border Act ostensibly requires its use? Does he really believe the summary removal power to be so morally bankrupt that he cannot countenance ever requiring an administration to use it?
Conclusion
To summarize, the Border Act’s 2,835 words that I have focused on act like a fifth column to sabotage the measure’s summary removal authority from within.
There is a bill that actually gives DHS a robust summary removal power. It is the House-passed Secure the Border Act (H.R. 2). Section 201(e) provides that:
AUTHORITY TO PROHIBIT INTRODUCTION OF CERTAIN ALIENS.— If the Secretary of Homeland Security determines, in his discretion, that the prohibition of the introduction of aliens who are inadmissible under subparagraph (A) or (C) of section 212(a)(6) or under section 212(a)(7) at an international land or maritime border of the United States is necessary to achieve operational control (as defined in section 2 of the Secure Fence Act of 2006 (8 U.S.C. 1701 note)) of such border, the Secretary may prohibit, in whole or in part, the introduction of such aliens at such border for such period of time as the Secretary determines is necessary for such purpose.
That’s all there is. The Secure the Border Act contains no other words designed to sabotage these 107. The bill means what it says.