On August 19, delegates at the Democratic National Convention approved by voice vote the “’24 Democratic Party Platform” (Platform). Of note, the Platform starts off stating that:
[W]e gather together to state our values on lands that have been stewarded through many centuries by the ancestors and descendants of Tribal Nations who have been here since time immemorial. We honor the communities native to this continent, and recognize that our country was built on Indigenous homelands … .
While we meet in Chicago, we … recognize and honor the traditional homelands of the Anishinaabe, also known as the Council of the Three Fires: the Ojibwe, Odawa, and Potawatomi Nations.
We acknowledge the many other tribes who consider this area their traditional homeland, including the Myaamia, Ho-Chunk, Menominee, Sac and Fox, Peoria, Kaskaskia, Wea, Kickapoo, and Mascouten.
Then, without realization of any possible irony, the Platform proclaims that “America is a nation of immigrants” and “[a] robust immigration system … upholds our values”.
Also of note, as Ali Swenson and Will Weissert reported for the Associated Press, the Platform “wasn’t updated to reflect that President Joe Biden is no longer running for reelection” and “makes repeated reference to Biden’s ‘second term’ despite the president’s decision a month ago to no longer seek one”. Talk about the lazy days of summer!
Lastly of note, the Platform contains a handful of positions regarding immigration that are actually sensible. What is startling about these positions (besides their being sensible) is that Vice President and Democratic presidential candidate Kamala Harris and impeached Department of Homeland Security (DHS) Secretary Alejandro Mayorkas must surely consider them to constitute hate speech because they are totally at odds with the publicly expressed and apparently deeply felt views of Harris and Mayorkas.
To De(tain) or Not to De(tain), That Is the Question
The Platform asserts that “Congress should … dedicate resources to detain” aliens who cross the border unlawfully. Makes sense. In 2003, the Supreme Court explained in Demore v. Kim that:
Congress … had before it evidence that one of the major causes of the [then Immigration and Naturalization Service’s] failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings.
Congress’ concern that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight [had strong support].
As I have reported, and as the House Committee on Homeland Security’s report on the impeachment resolution against Secretary Mayorkas also noted, data released by Secretary Mayorkas’ DHS reveals that:
Of aliens encountered at the southern border in fiscal year 2013, 98.4 percent of those who were continuously detained have been repatriated (mostly removed or returned) as of December 31, 2021, as have only 6.9 percent of those who were sometimes detained and 15.1 percent of those who were never detained. Of those continuously detained, only 0.7 percent have an unexecuted removal order, while 23.2 percent of those sometimes detained and 12.6 percent of those never detained have unexecuted orders.
Parallel data for aliens encountered at the southern border between fiscal years 2014-2019 shows similar outcomes.
DHS reported in its FY 2020 ICE Budget Overview for Congress that there were already an “estimated 558,863 fugitive aliens [ordered removed yet] currently at-large in the United States”, of course, because they had never been detained or had been released from detention. As the Committee on Homeland Security’s impeachment report concluded, “continuously detained aliens have historically almost always been repatriated, while nondetained aliens have rarely been”.
Still, the Platform’s pro-detention proclamation must be disconcerting to Kamala Harris. In 2018, then-Sen. Harris introduced S. 2849, legislation complaining that DHS “seeks to vastly expand the immigration detention system despite the availability of a wide array of community-based alternatives to detention that provide a cheaper, more compassionate, rights respecting response to migration”. Sen. Harris’s bill actually placed a “Moratorium on Expansion of Immigration Detention Facilities”, demanding that:
[DHS] may not use any Federal funds for the construction or expansion of immigration detention facilities … . Not later than 1 year after the date of the enactment of this Act, [DHS] shall submit a report to Congress that contains a detailed plan on … how the number of immigration detention beds will be decreased to 50 percent of the number available as of the date of the enactment.
Kamala Harris certainly does not display a detention growth-oriented mindset!
Also, as my colleague Todd Bensman has reported, “During a June 2019 televised primary debate, [Kamala Harris] reiterated that “I will get rid of the private detention centers.” That year, she co-sponsored legislation (S. 1243) designed to do just that: “Phase-Out … Private Detention Facilities And Use Of [State and Local] Jails”. The bill provided that:
[DHS] may not enter into or extend any contract or agreement with any public or private entity which owns or operates a detention facility for use of that facility to detain aliens in the custody of [DHS], and shall terminate any such contract not later than the date that is 3 years after the date of … enactment … . Beginning on th[at] date … any facility at which aliens in the custody of [DHS] are detained shall be owned and operated by [DHS].
Yet, as the ACLU has reported: “Under the Trump administration, 81 percent of people in [ICE] det[ention] each day in January 2020 were held in facilities owned or operated by private prison corporations. This number remains virtually unchanged under the Biden administration.”
Also in 2019, Sen. Harris co-sponsored legislation (S. 1243) providing that DHS “is prohibited from detaining anyone under the age of 18 in a facility operated or contracted by U.S. Immigration and Customs Enforcement [ICE]”. Keep in mind that, as I have reported:
Juveniles commit a large number of serious offenses. In 2020, there were 1,353 known juvenile homicide offenders. In 2019, juveniles constituted 21 percent of all arrests for robbery, 20 percent for arson, 17 percent for car theft, 12 percent for burglary, 10 percent for larceny-theft and weapons offenses, eight percent for murder, and seven percent for aggravated assault. In 2012, the last year for which data is available, juveniles accounted for 14 percent of all arrests for forcible rape.
Surely, the bill Sen. Harris co-sponsored exempted from its detention prohibition juvenile alien murderers, rapists, gang members, and other such criminals? Nope.
As to Secretary Mayorkas, he testified before the House Appropriations Committee’s Subcommittee on Homeland Security in May 2021 that:
One of the things that I have observed is the detention of individuals that do not pose a threat to public safety, or do not pose a risk of flight such that we are not confident in their appearance in future immigration proceedings. I am concerned about the overuse of detention, and where alternatives to detention would suffice … we will indeed be looking at that.
His lack of a detention growth-oriented mindset was also on display when he appointed as the immigration detention ombudsman an anti-ICE activist who condemned the remarks of President Trump’s ICE acting director that “‘we shouldn’t wait’ for illegal immigrants to commit crimes in order to deport them” as “sound[ing] like those of ‘a police state to me[’]”, as Jennie Taer reported in the New York Post.
Further, U.S. District Court Judge T. Kent Wetherell II of the Northern District of Florida concluded in 2023 in Florida v. United States that Secretary Mayorkas “took steps to reduce detention capacity, including closing all of DHS’s family detention facilities”, “requesting less detention capacity from Congress”, and “le[ading] Congress to believe that it did not need more detention capacity”. Judge Wetherell concluded that ‘‘it is hard to take [DHS’s] claim that they had to release more aliens into the country because of limited detention capacity seriously”.
Secretary Mayorkas has long asked Congress for fewer resources to detain aliens. As the Committee on Homeland Security’s report on the Mayorkas impeachment resolution noted:
[I]n Fiscal Years 2020 and 2021, DHS [during the Trump administration] requested enough funds for 54,000 and 60,000 detention beds, respectively. By Fiscal Year 2022, however, Secretary Mayorkas reduced requested detention space by nearly 45 percent, for 32,500 beds. In Fiscal Years 2023 and 2024, Secretary Mayorkas requested only 25,000 beds.
And Mayorkas’s policy priorities seek to limit the detention of removable aliens. As the impeachment report noted, ICE’s justification to Congress for its requested fiscal year 2024 budget admitted that “[Our] policy priorities seeking to limit detention of [aliens] assessed to not pose a threat to national security or public safety make significant increases in ADP [the average daily population of ICE detainees] unlikely under current circumstances.” And as the report noted, Secretary Mayorkas’s DHS argued in budget request documents that:
[A] reduction in detention capacity level will not impede ICE’s ability to detain, and remove [aliens] that present a threat to national security, border security, and public safety.
In alignment with guidance to limit detention among [aliens] who do not threaten national security, public safety, or meet mandatory detention requirements, noncitizen ADP remained below target in [fiscal year] 2022.
Funding an ADP of 25,000 maintains ICE’s ability to effectively manage its current detainee population flows.
Supporting an ADP of 25,000 will provide ICE with the flexibility and capacity to detain immigration law violators and those who pose a security threat while efficiently managing the detention portfolio.
To Re(move) or Not to Re(move), That Is the Question
The Democrats’ Platform asserts that “Congress should … dedicate resources to … remove individuals quickly” who are crossing unlawfully and that “Democrats believe that … those who are determined not to have a legal basis to remain should be quickly removed”.
Tell that to Kamala Harris. Taylor Walters and Mark Kellner reported in the New York Post that “during her abortive 2020 presidential-primary run … then-senator [Harris] repeatedly emphasized her position that illegal migrants who have no criminal record … should be permitted to remain in the country”, telling a debate audience that “No, absolutely not, they should not be deported … . [T]his was one of the very few issues with which I disagreed with the [Obama] administration.”
In 2020, Sen. Harris was an original co-sponsor of legislation (S. 4011) demanding that “during a public health emergency, [DHS] shall suspend all … removals of noncitizens from the United States”. Yes, the bill would have required the suspension of all removals of illegal aliens, criminal aliens, alien terrorists, and other removable aliens.
Even worse, the bill would have suspended such removals potentially indefinitely, even after the end of the public health emergency:
If an emergency … is declared, removals shall further remain suspended to a receiving country until the Secretary of Homeland Security and the Secretary of State each certify in writing to Congress that the country … has demonstrated evidence of diminishing cases and risk of community transmission … and … has public health infrastructure that is able to adequately handle the return of its nationals.
As to Secretary Mayorkas, he issued “Guidelines for the Enforcement of Civil Immigration Law” proclaiming that “we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities” and instructing DHS officials that: “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them … . Justice and our country's well-being require it.” He even went so far as to instruct that “Our personnel should not rely on the fact of [criminal] conviction … alone.”
To Re(sist) Asylum Fraud or Not to Re(sist) Asylum Fraud, That Is the Question
The Democrats’ Platform proclaims that “we need Congress to strengthen requirements for valid asylum claims” and that “Congress must pass legislation to reform our asylum system … so that we can … ensure it is not used as an alternative to legal immigration by” aliens not actually fleeing persecution.
I am not sure that the Platform had in mind the sort of legislation that Sen. Harris championed:
In 2014, the New York Times published an article titled “Asylum Fraud in Chinatown: An Industry of Lies”, reporting that:
Peter Kwong, a professor at the City University of New York ... said it was an open secret in the Chinese community that most asylum applications were at least partly false, from fabricated narratives of persecution to counterfeit supporting documents and invented witness testimony. . . .False asylum petitions are among the most common forms of immigration fraud, in part because they are difficult to detect, experts said.
Thus, it is no surprise that the Immigration and Nationality Act (INA) provides that the testimony of an asylum applicant “may be sufficient” to establish that the alien faces a well-founded fear of persecution “without corroboration, but only if the applicant satisfies the trier of fact that [their] testimony is credible”. The INA further states that:
[A] trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant [for asylum] or witness, the inherent plausibility of the … account[s], the consistency between the … written and oral statements (whenever made and whether or not under oath …), the internal consistency of each such statement, the consistency of such statements with other evidence of record … and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.
Yet, in 2019, Sen. Harris was an original co-sponsor of S. 2936, dictating that “A credibility assessment … may only be conducted on the material facts of the applicant’s claim. The perception of the trier of fact with respect to the applicant’s general truthfulness or trustworthiness shall not be relevant to assessing credibility of material facts.”
The INA also provides that “[a]n alien may not apply for asylum] unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States” (with certain exceptions). In 1996, the House Judiciary Committee explained the rationale for imposing this time limit:
[A]liens remain able file an asylum application regardless of how long they have resided in the United States, and many applications are filed by aliens who have been here for years. International law anticipates that aliens who have illegally entered a country in order to flee persecution should present themselves ‘without delay’ to the authorities. This is the exception, rather than the rule, under the U.S. asylum system.
Yet, in 2019, Sen. Harris was an original co-sponsor of legislation (S. 2936) that would have entirely eliminated the time limit.
Conclusion
I can understand if Vice President Harris and Secretary Mayorkas never bothered to read the Platform, these being the lazy days of summer and all, but what about their staffs? In any event, I think that Merrick Garland’s Department of Justice might need to investigate the delegates of the Democratic National Convention for domestic extremism.