Understanding Immigration Detention

Mark Krikorian; Andrew R. Arthur

By Mark Krikorian and Andrew R. Arthur on June 16, 2022

Podcast

Listen to "Understanding Immigration Detention" on Spreaker.

Summary

Within the next three weeks, the Supreme Court of the United States will issue an opinion in Biden v. Texas, which involves the administration’s termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. The Court will decide if there are limits on the administration’s authority to ignore explicit congressional mandates in allowing foreign nationals to enter and remain in the United States. Understanding the issues surrounding detention and the history behind the detention mandates in the INA will be key to understanding the Court’s holding in what some consider the most important immigration legal case ever heard.

In this week’s episode of Parsing Immigration Policy, Andrew Arthur, the Center’s fellow in law and policy and former immigration judge, provides a 101 class on immigration detention. Present law mandates the detention of aliens seeking admission with a narrow exception that allows the DHS to parole an alien “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. The Biden administration is presently broadly applying this limited parole authority to release aliens en masse, including criminal aliens and those in asylum proceedings; Congress explicitly denied in statute this authority to the executive branch.

Broad application of the parole authority and ignoring of the detention requirement has incentivized illegal immigration. Most illegal immigrants come to the U.S. in order to live and work. They are able to do this by gaming the system and fraudulently claiming asylum in order to be released and then later not leaving the country after a final order of removal. Not enforcing the detention requirement has resulted in the highest apprehension rate in history in FY 2021 and an increase of 1.4 million in the illegal immigrant population since Biden took office.

In the upcoming SCOTUS opinion in Biden v. Texas, we will know if the prosecutorial discretion exception will be allowed to swallow the congressional rule mandating detention.

In his closing commentary, Mark Krikorian, the Center’s Executive Director and host of Parsing Immigration Policy, highlights a federal court opinion released this week vacating Department of Homeland Security guidelines limiting which removable aliens ICE agents are allowed to arrest and the required procedures those agents must follow in enforcing the immigration laws. The Biden administration established these guidelines through memos issued by various officials, most recently Secretary Mayorkas, with the intent of gutting interior enforcement and abolishing ICE without formally eliminating the agency.