Sen. Kamala Harris’s Attempted Sabotage of Immigration Law Enforcement

Summary

The legislation that Kamala Harris championed during her four years in the U.S. Senate reveals a disturbingly extreme immigration agenda. Sen. Harris introduced or co-sponsored a wide array of bills designed to negatively impact the ability of DHS to enforce our nation’s immigration laws. While the legislation was not enacted into law, should it reflect what her immigration policies would be like as president, her administration would out-extreme even that of President Biden and Alejandro Mayorkas, Biden’s impeached secretary of Homeland Security.

During the 115th and 116th Congresses, Harris introduced or co-sponsored legislation designed to:

• Effectively erase the border by halting or impeding border wall construction and curtailing border enforcement;
• Disable immigration detention by cutting detention beds; ending most mandatory detention; foisting on DHS “alternatives to detention” (or, more accurately, “alternatives to enforcement”); limiting DHS’s ability to detain illegal alien adults and minors claiming to be family units, to transfer detainees, to detain “vulnerable populations”, and to operate a detention system at all and the immigration courts’ ability to function
• Handcuff DHS law enforcement officers’ ability to perform their jobs by creating sanctuaries at “sensitive locations”, prohibiting enforcement actions, making it impossible for immigration enforcement agencies to function, prohibiting voluntary assistance from state and local law enforcement, and prohibiting referrals for criminal prosecution
• Gut DHS’s ability to remove illegal and criminal aliens by prohibiting removals, impeding DHS’s ability to remove aliens, and providing taxpayer-funded lawyers to aliens in removal proceedings;
• Ban or enfeeble effective or promising enforcement initiatives created by the Trump administration, including the Migrant Protection Protocols/Remain in Mexico, Title 42 expulsions, a third-country transit asylum eligibility bar, 212(f) proclamations barring the entry of certain aliens, and sensible immigration and border enforcement priorities;
• Enable asylum fraud by terminating application time limits, placing obstacles in the way of adverse credibility determinations, putting asylum officers in charge of asylum claims, increasing incentives for asylum fraud, and;
• Protect alien terrorists.

 Listen to "Sen. Kamala Harris’s Immigration Track Record" on Spreaker. 

Author George Fishman Discusses this report in our Parsing Immigration Policy podcast.

Introduction

Kamala Harris served in the U.S. Senate for four years, from January 2017 until January 2021. My colleague Todd Bensman has written that during her tenure as a U.S. senator, “Harris went all-in with the most extreme agenda on border security in American history” and “messag[ed] as her own the most fringe ideas about immigration and the border ever heard on the main American public square”. Her positions? Per Bensman, “Abolish ICE. End all deportation and detention. Extend U.S. asylum access to all comers so they can stay and disappear. Grant citizenship to millions of illegal immigrants. Free healthcare to all. Stop the wall.”

Such an extremist agenda is certainly reflected in the legislation that Sen. Harris (D-Calif.) championed. She introduced or co-sponsored a wide array of bills designed to negatively impact the enforcement of our nation’s immigration laws. For instance, my colleague Jon Feere has written that:

• [I]n 2019, then-Senator Kamala Harris introduced a bill that would have taken $220 million out of the Enforcement and Removal Operations … division of U.S. Immigration and Customs Enforcement (ICE), which is responsible for arrests and deportations of illegal aliens.

• Harris’s plan was to take ICE’s enforcement funds and … grant them to non-governmental organizations … specifically so that services for illegal aliens could be “provided by a social worker, employed by a nonprofit entity”… . In other words, Harris’s plan was to take money Congress gave to ICE for enforcement purposes and funnel it to immigration attorneys and immigrant right groups, which undoubtedly would have benefited many virulent anti-border, anti-ICE activists.

Feere also revealed that:

Harris called it “outrageous” that ICE was arresting some of the criminal illegal aliens seeking to become sponsors of UACs [unaccompanied alien minors] and tried to put an end to the effort.

Under her bill, if ICE were to discover through cooperation with [the Department of Health and Human Services] that a potential UAC sponsor is in the United States illegally, even with multiple convictions for crimes like child sex abuse on their record, ICE would be prohibited from arresting or deporting that criminal alien. In other words, all a UAC had to do was give HHS the name of a potential sponsor, and ICE would be forever barred from enforcement action on the sponsor, any proposed sponsor, or any other person living in the potential sponsor’s household … .

Though her bill didn’t become law, when the Democrats took control of Congress the following session, Harris’s proposal was quietly tucked into a DHS funding bill [in somewhat less extreme form], which had the immediate effect of stopping ICE from arresting most sponsors. Naturally, HHS saw an immediate increase in complaints about abuse and trafficking of migrant children.

This report will take a look at the whole panoply of legislation that Sen. Harris introduced or co-sponsored to the extent that it would have impacted immigration law enforcement (other than that discussed by Feere). While the legislation was not enacted into law, should it reflect what her immigration policies would be like as president, her administration would out-extreme even that of President Biden and Alejandro Mayorkas, his impeached secretary of Homeland Security.

Erasing the Border

Halting or Impeding Border Wall Construction

In 2020, Harris was a co-sponsor of an amendment (SA 1774) intended to be proposed to S. 4049 (authorize appropriations for the Department of Defense), titled “Prohibition on Constructing Walls, Fences, or Associated Roads on Southern Border of United States”. The amendment declared that:

The Secretary of Defense may not use any of the funds authorized in this Act to … provide support … in connection with the construction of a wall or fence on the southern border … or a road associated with such a wall or fence … undertake a military construction project … in connection with the construction of such a wall, fence, or road … or … otherwise construct or provide support for the construction of such a wall, fence, or road.

And in 2019, Harris was an original co-sponsor of S. 326, demanding that “no funds appropriated or otherwise made available prior to the date of the enactment of this Act may be used for the construction of barriers, land acquisition, or any other associated activities on the southern border without specific statutory authorization from Congress”.

All this, despite the fact that then-Senators Barack Obama and Joe Biden both voted for the “Secure Fence Act of 2006”, which was enacted in order to accelerate the construction of physical barriers along the border:

• [DHS] shall take all actions … necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States, to include … physical infrastructure enhancements to prevent unlawful entry by aliens into the United States.

• [DHS] … shall provide for least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors [over approximately 850 miles of the southern border].

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) as enacted provided in part that:

• The Attorney General … shall take such actions as may be necessary to install additional physical barriers and roads … in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.

• The Attorney General shall provide for the construction along the 14 miles of the international land border of the United States, starting at the Pacific Ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.

• The provisions of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the[se] barriers and roads. [All emphases throughout this report are added.]

But, as Congress explained in 2005 in the conference report to the appropriations bill containing the “REAL ID Act”:

The California Coastal Commission has prevented completion of the San Diego border security infrastructure [required by IIRIRA] because it alleges that plans to complete it are inconsistent with the California Coastal Management Program. ... Continued delays caused by litigation have demonstrated the need for additional waiver authority with respect to other laws that might impede the expeditious construction of security infrastructure along the border.

Earlier that year, House Judiciary Committee Chairman James Sensenbrenner stated during floor consideration of the “REAL ID Act” that “the effort to complete gaps in the San Diego border security fence ... is still stymied 8 years after congressional authorization” and stated that “[There has been] endless litigation against plugging the hole in the fence south of San Diego. We were able to win World War II quicker than we were able to complete this fence.”

Therefore, in 2005, Congress modified section 102 of IIRIRA to provide that:

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.

Yet, in 2019, Harris was an original co-sponsor of S. 263, legislation designed not to facilitate the construction of physical barriers along the border, but legal and procedural barriers designed to impede the construction of physical barriers. The bill provided that:

• Before implementing any plan to acquire land on which [DHS] … intends to build or construct a temporary or permanent structure related to efforts to secure or protect the border between the United States and Mexico, [DHS] shall conduct meaningful and significant consultation with … any owners of the parcels of land proposed to be acquired … any State agencies that manage the applicable land … [or] that administer the use of resources on the applicable land … any permittees, leaseholders, and other users of the … land … and … any individuals, communities, or Tribes that could be impacted by the construction of the structure on the land.

• [DHS] shall conduct 2 public meetings located within 100 miles of each parcel of private land, State land, or Tribal land subject to potential acquisition.

• Before beginning construction of [such] a temporary or permanent structure … [DHS] shall … give significant weight to the opinions and information presented … during the consultation process … and … publish in the Federal Register information describing … ways in which the final plan … for acquiring the land or constructing the structure was modified as a result of the consultation process … and … ways in which the final plan … was not modified as a result of valid concerns raised to the proposed modifications.

Further, the bill provided that:

Notwithstanding … section 102 of [IIRIRA] … the Federal Government shall not take physical possession of any land acquired, or proposed to be acquired … for the construction of any infrastructure (including a pedestrian fence, vehicle barrier, levee, gate, wall, fence, road, or port of entry) at the international border between the United States and Mexico until the date on which the applicable court determines that … in the case of State land … all relevant stakeholders have been consulted on the acquisition, including … any State agencies that manage the … land … any State agencies that administer the use of resources on the … land … any permittees, leaseholders, and other users of the … land; and … any individuals, communities, and Tribes that could be impacted by the construction of the structure on the land … and … in the case of Tribal land … all relevant Tribal stakeholders have been consulted and have approved the acquisition. [Emphasis added.]

All this, despite the fact that § 102 (as amended) already provides that:

In carrying out this section, [DHS] shall consult with the [Departments of the Interior and of Agriculture], States, local governments, Indian tribes, and property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such fencing is to be constructed.

There is a name for what the sponsors of S. 263 intended to do: “death by consultation”, the devising of consultation requirements so onerous as to leave the promise of additional physical barriers along the border perpetually unfulfilled. Sensenbrenner would have to revise his quip — “The French were able to win the Hundred Years War quicker than we were able to complete this fence.”

Curtailing Border Enforcement

In 2020, Harris was an original co-sponsor of S. 4011, which provided that:

[A]ny noncitizen applying for admission at a port of entry on or after the date on which [a] public health emergency went into effect who is deemed inadmissible or who is apprehended by U.S. Customs and Border Protection [CBP] within 14 days after crossing the international border into the United States without authorization on or after [such] date … shall, if he or she presents a claim to relief under the immigration laws … be paroled into the United States.

The only exception? The parole provision shall not apply if the federal official authorized to carry out the relevant immigration enforcement “has clear and convincing evidence, based on credible and individualized information, that the noncitizen is a threat to another person or the community”. However, “[a] prior conviction or pending criminal charge … may not be the sole factor to justify” the failure to provide parole.

Thus, during the Covid public health emergency, this bill would have required the Department of Homeland Security (DHS) to parole into the U.S. a massive percentage of the huge numbers of inadmissible alien seeking to enter the U.S., or cross the border illegally — those who “present[ed] a claim to relief”, unless DHS happened to magically have “clear and convincing evidence, based on credible and individualized information, that the noncitizen is a threat to another person or the community”.

The bill was based on naïveté and self-delusion. As to the naïveté, DHS and the Department of Justice (DOJ) have explained that:

In recent years, the United States has seen a large increase in the … proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... jump[ing] from approximately 5% to above 40% ... . [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.

And DHS explained in 2018 that “[M]any [aliens claiming credible fear] know it will give them an opportunity to stay in our country, even if they do not actually have a valid claim to asylum … . [B]y the time a judge has ordered them removed from the United States, many have vanished.”

As to the self-delusion regarding DHS’s supposed ability to produce credible and individualized information regarding those aliens (arriving as part of a mass influx at the border) who are a threat to another person or the community, listen to Rodney Scott, Secretary Mayorkas’ first U.S. Border Patrol chief. Scott testified to the House Judiciary Committee that:

[R]unning records checks on any alien that has not been arrested by U.S. law enforcement in the past or is not currently known by U.S. intelligence is like looking for something on an empty hard drive. There is simply no data to compare it with. The alien could be a saint, or he/she could be a serial killer.

Further, Scott told staff of the House Committee on Homeland Security that:

• [W]hen U.S. Border Patrol agents run … records checks, or ICE or anybody else, on foreign nationals … it is only checking U.S. databases really … primarily [regarding] criminal offenses that have happened in the U.S.

• [W]e don’t have direct plug-ins to other nations’ criminal databases. And many of the nations these people are coming from, we know for a fact, don’t even have good criminal database records systems to pull from.

  And, a lot of times, we have no idea even who the person is. So the fingerprints, that’s valid, but they can make up any name they want.

  In the perfect world, if an agent has any suspicion, then that agent has the ability to work through the State Department … go to that country, ask a bunch of more questions. But when you’re handling over a thousand arrests a day, let alone 10,000, the agents don’t have time to do any of that.

  This has all been briefed to … Secretary [Mayorkas]. He knows that vetting is a joke. It’s literally a check-the-box … . [W]e have no idea what any of these people did anywhere else in the world.

But even as to those few apprehended aliens already known by U.S. law enforcement, the bill prohibited prior known convictions from being used as the sole factor to justify denials of parole.

Disabling Detention

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] INS’ 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].

The Court also concluded that:

[INS’s] near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation ... . [D]eportable criminal aliens who remained … often committed more crimes before being removed. One 1986 study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45% — nearly half — were arrested multiple times before their deportation proceedings even began.

The House Judiciary Committee similarly discovered, following the issuance of a subpoena to the INS regarding 35,318 criminal aliens released by INS between October 1, 1994, and May 31, 1999, “that about 37 percent … had been convicted of another crime in the United States after their release”.

Further, in 2003, DOJ’s Office of the Inspector General concluded that INS had successfully removed only 3 percent of non-detained aliens who had unsuccessfully claimed asylum. And 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 fiscal year 2020 ICE “Budget Overview” for Congress that there were already an “estimated 558,863 fugitive aliens [ordered removed] currently at-large in the United States” 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 non-detained aliens have rarely been”. The report also concluded that “in mandating detention at the border, Congress understood that a lack of consequences, such as detention, incentivizes illegal immigration”. As U.S. District Court Judge T. Kent Wetherell II of the Northern District of Florida concluded last year in Florida v. United States:

[DHS had] effectively incentivized [the surge in illegal migration under Secretary Mayorkas] by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course.

Cutting Detention Beds

In 2018, 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.” How dare ICE seek to expand immigration detention!

Harris’s bill then placed a “Moratorium on Expansion of Immigration Detention Facilities”:

[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 … and … how to implement community-based alternatives to detention, as a substitute for detention in a facility, which is developed in consultation with stakeholders, including nonprofit legal service providers, nonprofit shelter providers, and detention visitation programs.

Just what DHS needed — fewer detention beds!

In 2019, Harris was a co-sponsor of S. 1243, legislation designed to “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].

That’s what DHS needed — to lose the flexibility to utilize detention facilities owned or operated by any public or private entity when, as the ACLU has reported: “Under the Trump administration, 81 percent of people detained [by ICE] 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.”

Ending Mandatory Detention

The INA provides for mandatory detention for certain arriving and recently arrived inadmissible aliens who are placed into expedited removal proceedings and for other aliens seeking admission who have not been determined to be clearly and without a doubt entitled to be admitted. The House of Representatives impeached DHS Secretary Mayorkas in part for failing to abide by these mandatory detention requirements.

In 2019, Harris co-sponsored S. 1243, a bill that would have eliminated these mandatory detention requirements.

The INA requires that:

• [Generally,] when an alien is ordered removed, [DHS] shall remove the alien … within a period of 90 days (… the “removal period”).

• During the removal period, [DHS] shall detain the alien. Under no circumstance during the removal period shall [DHS] release an alien who has been found inadmissible under section 212(a)(2) or 212(a)(3)(B) [criminal and terrorism grounds] or deportable under section 237(a)(2) or 237(a)(4)(B) [criminal and terrorism grounds].

In 2020, Harris was an original co-sponsor of S. 4011, legislation requiring that “individuals in detention who have received removal orders shall be released on orders of supervision” during a public health emergency.

In 2019, Harris was a co-sponsor of S. 1243, legislation providing that “Notwithstanding any other provision of th[e INA], [DHS] is prohibited from detaining anyone under the age of 18 in a facility operated or contracted by [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.

The bill Harris co-sponsored would not have exempted from its detention prohibition alien minors who are murderers, rapists, gang members, and other such criminals.

Alternatives to Detention = Alternatives to Enforcement

Jon Feere has written that:

• As ICE wrote in a draft report on ATD [alternatives to detention] obtained by Fox News, ATD has “little value” … with the vast majority of illegal aliens absconding from the program altogether. ICE concluded that “alternatives to detention are not a replacement for detention and that continuing to release aliens prior to the conclusion of their immigration case will not be successful in creating compliance with the law”.

• ICE looked at aliens on ATD who were not taken out of the program [early]… . The results were a stunning rebuke of the costly ATD program. As Fox News explained:

  [T]he agency found that absconsion rates — which ICE says includes those who cut off an ankle bracelet, delete their cell phone application, fail to return calls, ignored contact attempts, or who the U.S. government is otherwise unable to locate — were extremely high. Over the time period the report covered (from FY15 to part of FY 20), the average absconsion rate was 84%. Of the 47,905 enrolled for their full immigration lifecycle, 40,300 absconded.

Feere concluded that:

In sum, if you leave illegal aliens in ATD for the entire lifecycle of their case, the great majority of them will eventually disappear. This is probably because they know their cases are not legitimate and because they know a court is going to order them to return home. They don’t want to be quickly located and arrested by ICE. It should come as no surprise that ICE officers find hundreds of cut ankle bracelets during their careers.

In 2019, Harris was an original co-sponsor of S. 2396, which provided that:

If an individual is not eligible for release from custody, [DHS] shall consider the alien for placement in secure alternatives that maintain custody over the alien, including the use of electronic ankle devices. [DHS] may use secure alternatives programs to maintain custody over any alien detained under this Act except for aliens detained under section 236A [regarding alien terrorists and the Alien Terrorist Removal Court]… . The term “secure alternatives program” means any custodial or noncustodial program under which an individual is screened and provided with appearance assistance services or placed in supervision programs, as needed, to ensure that the individual appears at all immigration interviews, appointments, and removal or deportation hearings.

First, in what Orwellian world do ankle bracelets and other “noncustodial” “alternatives to detention” (ATD) programs constitute custody?!

Second, what about criminal aliens? The INA provides that DHS “shall take into custody” many inadmissible and deportable criminal aliens “when the alien is released”. As the Supreme Court concluded in Demore, “deportable criminal aliens who remained in the United States often committed more crimes before being removed”. Even if criminal aliens on ATD were to appear at all removal hearings, which they don’t, how does this prevent them from committing more crimes while free to roam our communities?

In 2019, Harris co-sponsored S. 1243, a bill designed to “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 with any public or private for-profit entity which owns or operates a program or facility that provides for non-residential detention-related activities for aliens who are subject to monitoring by [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 such program or facility shall be owned and operated by a nonprofit organization or by [DHS].

So illegal alien advocacy organizations can own and operate ATD programs for aliens released from detention by DHS, but God forbid a company make a profit doing so.

Limiting DHS’s Ability to Detain Illegal Alien Adults and Minors Claiming to be Family Units

In 2018, Harris was an original co-sponsor of S. 3558, a bill trying to make it as difficult as possible for DHS to detain any illegal or other removable aliens with minor children:

[DHS] … shall ensure that 1 or more qualified child welfare professionals with expertise in culturally competent, trauma-centered, and developmentally appropriate interviewing skills is available at each port of entry and Border Patrol station… . [who] shall … maintain the best interests of children in any [“action relating to the repatriation or referral for prosecution of 1 or more individuals apprehended by DHS … for a suspected or confirmed violation of the INA”] for family units carried out at a border, including by … ascertaining whether the detention … of an apprehended parent or legal guardian of a child presents a humanitarian concern or a concern relating to the physical safety of the apprehended parent or legal guardian … and provid[ing] to [ICE] a best interest placement recommendation for each accompanied child and family that … favors a policy of release.

Given that in fiscal year 2024 (through July 5), well over a third of all aliens apprehended along the southern border came as purported members of family units, this provision would represent a significant impediment to DHS’s ability to detain aliens illegally crossing the border and, thus, a significant impediment to DHS’s ability to remove aliens illegally crossing the border.

In 2019, Harris was an original co-sponsor of S. 661, a bill with similar language.

In 2018, Harris introduced S. 3227, which would have required that:

[DHS] shall release each apprehended parent or legal guardian on recognizance, parole, or bond, or permit such parent or legal guardian to participate in an [ATD] program … unless [DHS] demonstrates that such participation would create a substantial risk that the apprehended parent or legal guardian is likely to cause harm to himself, herself, or others … .In order to demonstrate that continued detention is necessary, [DHS] shall produce clear and convincing evidence of risk factors, including credible and individualized information.

As discussed, it is delusional to believe that DHS can magically obtain such clear and convincing evidence, such credible and individualized information, as is Harris’s apparent belief that apprehended parents placed on ATD will not simply disappear.

Limiting DHS’s Ability to Transfer Detainees

In 2019, Harris was an original co-sponsor of S. 2396, which provided that:

Absent emergency circumstances, such as a natural disaster or comparable exigency, [DHS] … may not transfer a detainee who has an existing attorney-client relationship to another facility if the transfer of the detainee would … impair the existing attorney-client relationship … prejudice the rights of the detainee in any legal proceeding … affect the ability of the detainee to present evidence or witnesses.

Absent a natural disaster, I presume such as a hurricane bearing down on a detention facility, DHS cannot transfer a detainee based on its operational needs, the availability of appropriate detention space and personnel, or its enforcement strategy? I can see DHS officials simply pulling out their hair.

Limiting DHS’s Ability to Detain “Vulnerable Populations”

S. 2396 also provided that:

• Not later than 72 hours after the commencement of an immigration-related enforcement activity, the Department shall screen each detainee to determine whether the detainee is a member of a vulnerable population.

• Not later than 72 hours after an individual is detained … (unless … waived in writing by the individual), an individual who is a member of a vulnerable population … shall be released from the custody of [DHS] and shall not be subject to electronic monitoring unless the Department demonstrates by a preponderance of the evidence that the individual … is subject to … mandatory detention … poses a risk to the national security of the United States; or … is a flight risk and the risk cannot be mitigated through supervision or placement in an alternative program.

It is delusional to believe that DHS can magically know that an alien is a risk to national security. Does an alien who may simply be dangerous qualify as a risk to national security? It is also delusional to believe that DHS (or an immigration judge, for that matter) can determine on an individualized basis whether an alien entering the U.S. as part of a mass influx would pose a flight risk if released. According to DHS removal data, most apprehended aliens will pose a flight risk if released. Alternative programs? The bill’s drafters couldn’t even stomach electronic monitoring!

And who would qualify as “vulnerable” under S. 2396?

The term “vulnerable population’’ includes individuals … with a nonfrivolous claim to United States citizenship … who have a disability or have been determined by a medically trained professional to have medical or mental health needs … [who are p]regnant or nursing women … who are detained with 1 or more of their children … who provide financial, physical, and other direct support to their minor children, parents, or other dependents … who are at least 65 … [who are] children [generally, unmarried persons under 21] … [who are v]ictims of abuse, violence, crime, or human trafficking … who have been referred for a credible fear interview, a reasonable fear interview, or an asylum hearing … [who are s]tateless … who have applied or intend to apply for asylum, withholding of removal, or protection under the Convention Against Torture … who make a prima facie case for eligibility for relief under any provision of the [INA] including returning lawful permanent residents … who self-identify as lesbian, gay, bisexual, transgender, or queer … [or] any group designated by [DHS] as a vulnerable population.

It is almost as if this language was written to inspire mockery, as if the drafters had lost custody of their senses.

In 2019, Harris was also an original co-sponsor of S. 2113, which provided that:

Except in extraordinary circumstances, such as … in which an alien is known to be a member of a terrorist organization or a transnational criminal organization, an alien shall not be detained if … the alien … is known to suffer from a serious physical or mental illness … has a disability … is elderly … is pregnant or breastfeeding … is under 18 … or … demonstrates that the alien is the primary caregiver of … a person under 18 … or … an infirm person; or … the detention of the alien is otherwise not in the public interest.

See previous comment.

In 2019, Harris co-sponsored S. 1243, which provided that:

In the case that the alien … who is the subject of a custody determination … is a vulnerable person or a primary caregiver, the alien may not be detained unless [DHS] demonstrates … that it is unreasonable or not practicable to place the individual in a community-based supervision program.

And how would DHS do that?

Who does the bill consider to be a vulnerable person?

The term ‘vulnerable person” means an individual who … is under 21 … or over 60 … is pregnant … identifies as lesbian, gay, bisexual, transgender, or intersex … is a victim or witness of a crime … has filed a nonfrivolous civil rights claim in Federal or State court … has filed, or is a material witness to, a bonafide workplace claim [“related to the violation of applicable Federal, State, and local labor laws, including laws concerning wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights, or nondiscrimination”] … has a serious mental or physical illness or disability … has been determined by an asylum officer … to have a credible fear of persecution or torture … has limited English language proficiency and is not provided access to appropriate and meaningful language services in a timely fashion … or … has been determined by an immigration judge or [DHS] to be experiencing severe trauma or to be a survivor of torture or gender-based violence.

In 2018, Harris was an original co-sponsor of S. 3225, and in 2019, of S. 648, legislation providing that:

• [DHS] … shall not detain a person under any provision of the [INA] … during pregnancy or postpartum recovery, pending a decision with respect to whether the person is to be removed from the United States … and … shall immediately release any detainee found to be pregnant [except “under extraordinary circumstances in which DHS makes an individualized determination that credible, reasonable grounds exist to believe that the person presents an immediate and serious threat of hurting herself or others”].

• In a case in which detention is the least restrictive means of effectuating the removal from the United States of a pregnant person who is the subject of a final order of deportation or removal, [DHS] may, solely for the purpose of such removal, detain the pregnant person for a period that is … the shortest possible period immediately preceding the removal of the person from the United States … [but] … not more than 5 days.

Not more than five days?

Limiting DHS’s Ability to Operate a Detention System and the Immigration Courts’ Ability to Function

In 2019, Harris was a co-sponsor of S. 1243, legislation that provided that:

In a hearing [before an immigration judge] … there shall be a presumption that the alien should be released. [DHS] shall have the duty of rebutting this presumption, which may only be shown based on clear and convincing evidence, including credible and individualized information, that the use of alternatives to detention will not reasonably ensure the appearance of the alien at removal proceedings, or that the alien is a threat to another person or the community. The fact that an alien has a criminal charge pending against the alien may not be the sole factor to justify the continued detention of the alien.

Pure delusion.

The bill goes on:

• If an immigration judge determines … that the release of an alien will not reasonably ensure the appearance of the alien as required or will endanger the safety of any other person or the community, the immigration judge shall order the least restrictive conditions, or combination of conditions, that the judge determines will reasonably ensure the appearance of the alien as required and the safety of any other person and the community, which may include release on recognizance, secured or unsecured release on bond, or participation in a[n ATD] program [including community-based supervision programs and community support, case management services, appearance assistance services, and screenings of aliens who have been detained]. Any conditions assigned to an alien … shall be reviewed by the immigration judge on a monthly basis.

• An alien who is detained … shall be provided with a de novo custody determination hearing … every 60 days, as well as upon showing of a change in circumstances or good cause.

Putting aside the delusional faith in ATD, immigration judges would have to review each and every one of these custody decisions every month or every 60 days. Did I mention that (as the House Homeland Security Committee’s report on the impeachment proceedings against Secretary Mayorkas explained): “During Secretary Mayorkas’ tenure, the immigration court backlog has more than doubled from about 1,300,000 cases to over 3,000,000 cases. The backlog is destroying the courts’ ability to administer justice and provide appropriate relief in a timeframe that does not run into years or even decades.” Nolan Rappaport, my former colleague and chief counsel for the Democrats on the House Judiciary Committee’s immigration subcommittee, wrote in The Hill that “The immigration court has more than 700 judges. ... But, the Congressional Research Service estimated ... that it would take 1,349 judges 10 years to clear the backlog, which was only 1,979,313 cases when [it] made that calculation.” He also wrote in The Hill that:

• [Secretary] Mayorkas [has] release[ed] so many asylum seekers into the country that it is utterly impossible for the already overwhelmed immigration court to keep up with its caseload.

• The average asylum case will take about 4.2 years [citing the Wall Street Journal] to complete. And these numbers do not include the migrants Mayorkas has let into the country who haven’t yet been put in removal proceedings.

  The backlog has gotten so large that we may have to ... suspend the admission of asylum seekers who come here unlawfully.

Handcuffing DHS Law Enforcement Officers’ Ability to Perform Their Jobs

Creating Sanctuaries at “Sensitive Locations”

As my colleague Jon Feere has written:

• [T]he Biden[/Harris] administration has declared that federal law enforcement is largely prohibited from conducting any immigration enforcement of criminal aliens near countless locations throughout the country, including near any “place where children gather” such as a playground or recreational center. What used to be safe spaces for vulnerable members of society have been transformed into safe spaces for violent offenders. This new policy prohibits even basic surveillance of a criminal alien suspect who happens to be in or near so-called “protected” areas. These locations are mini sanctuaries for criminal aliens who are now “protected” from federal law enforcement officers.

• The scope is virtually limitless and undefined, and [Secretary] Mayorkas explains the goal is to limit immigration enforcement’s “impact on other people and broader societal interests”. While there may be instances where ICE and CBP’s missions are not an immediate priority — say, perhaps, at a triage center immediately following natural disaster — this policy was written with the perspective that nearly all functions of society are more important than DHS’s immigration enforcement mission.

You might ask what the Biden/Harris administration considers a protected area. As Feere explained:

• [T]he new policy does include examples of what constitutes a protected area: Near a community-based organization; near where a wedding might occur (like a hotel, even if there’s no wedding actually occurring); near a vaccination site (which would seem to include any street in America with a pharmacy); near any place where children gather; near any place with an ongoing parade, demonstration, or rally; and any structure or temporary facility where activities of faith are occurring, to name a few.

• Mayorkas explains that the limitations don’t apply where there’s an “imminent” risk of harm or a “hot pursuit”, but those are rare circumstances and would rarely apply. It means that officers are prohibited from arresting a known child abuser on the same street as a school unless they observe the alien starting to victimize someone. Of course, officers are prohibited from conducting surveillance near schools anyhow, so officers are unlikely to be available to stop an assault from happening.

In 2017, Harris was an original co-sponsor of S. 845, providing that:

An enforcement action [“apprehension, arrest, interview, request for identification, search, or surveillance for the purposes of immigration enforcement”, including “joint case[s] led by another law enforcement agency”] may not take place at, or be focused on, a sensitive location unless … the action involves exigent circumstances … and … prior approval for the enforcement action was obtained from the appropriate official.

The term “sensitive location” included “all of the physical space located within 1,000 feet of” any:

• medical treatment or health care facility;
• public or private school;
• scholastic or education-related activity or event, including field trips and interscholastic events;
• school bus or school bus stop during periods when school children are present on the bus or at the stop;
• organization that … assists children, pregnant women, victims of crime or abuse, or individuals with significant mental or physical disabilities … or … provides disaster or emergency social services and assistance;
• place of worship, including buildings rented for the purpose of religious services, retreats, counseling, workshops, instruction, and education;
• Federal, State, or local courthouse, including the office of an individual’s legal counsel or representative, and a probation, parole, or supervised release office;
• site of a funeral, wedding, or other religious ceremony or observance;
• public demonstration, such as a march, rally, or parade;
• domestic violence shelter, rape crisis center, supervised visitation center, family justice center, or victim services provider; or
• other location specified by [DHS].

What would happen if, while carrying out an enforcement action “officers … are led to a sensitive location, and no exigent circumstance and prior approval … exists[?]” In that case the officers must “cease before taking any further enforcement action … conduct themselves in a discreet manner … maintain surveillance; and … immediately consult their supervisor in order to determine whether such enforcement action should be discontinued”.

What would happen if an enforcement action was carried out in violation of the sensitive location strictures?

• [N]o information resulting from the enforcement action may be entered into the record or received into evidence in a removal proceeding resulting from the enforcement action; and … the alien who is the subject of such removal proceeding may file a motion for the immediate termination of the removal proceeding.

• [DHS] shall modify the Notice to Appear [NTA] form … to provide the subjects of an enforcement action with information, written in plain language, summarizing the restrictions against enforcement actions at sensitive locations … and the remedies available to the alien.

In 2019, Harris was an original co-sponsor of S. 2396, and in 2020 of S. 3609, legislation with similar language.

Prohibiting Enforcement Actions

In 2020, Harris was an original co-sponsor of S. 4011, which demanded that “during a public health emergency, [DHS] shall suspend all immigration enforcement-related activities in the United States, including … arrests and apprehensions by [ICE] or [CBP] of noncitizens who are physically present in the United States … [and] service of [NTAs].”

Yes, Harris thought it would be a good idea to co-sponsor a bill requiring the suspension of all immigration enforcement-related activities! There was an exception:

[The required suspension] shall not apply if the Federal official … has clear and convincing evidence, based on credible and individualized information, that the noncitizen is a threat to another person or the community … . [but a] prior conviction or pending criminal charge against the noncitizen … may not be the sole factor to justify carrying out an otherwise prohibited immigration enforcement activity.

Again, that phrase “clear and convincing evidence, based on credible and individualized information”. Delusional.

Making It Impossible for Immigration Enforcement Agencies to Function

In 2018, Harris was an original co-sponsor of S. 2937, and in 2019 of S. 2256, legislation providing that “in any immigration enforcement action, [DHS] … shall:

• as soon as possible, but generally not later than [within] 2 hours … inquire whether an individual is a parent or primary caregiver of a child in the United States and provide any such individuals with … the opportunity to make a minimum of 2 telephone calls to arrange for the care of such child in the individual’s absence; and … contact information for … child welfare agencies and family courts … [and] consulates, attorneys, and legal service providers capable of providing free legal advice or representation regarding child welfare, child custody determinations, and immigration matters;

• notify the child welfare agency with jurisdiction over the child if … the child’s parent or primary caregiver is unable to make care arrangements for the child … or … the child is in imminent risk of serious harm;

• ensure that any parent or primary caregiver of a child in the United States … absent medical necessity or extraordinary circumstances, is not transferred from his or her area of apprehension until the individual … has made arrangements for the care of such child [unless] such arrangements are unavailable or the individual is unable to make such arrangements … [and] absent medical necessity or extraordinary circumstances, and to the extent practicable, is placed in a detention facility that is … proximate to the location of apprehension; and … proximate to the child’s habitual place of residence; and … receives due consideration of the best interests of such child in any decision or action relating to his or her detention, release, or transfer between detention facilities.

DHS is supposed to be able to do all this and at the same time successfully operate as a law enforcement agency carrying out millions of immigration enforcement actions a year?

In 2019, Harris was an original co-sponsor of S. 2396, which contained a similar provision regarding aliens detained following an enforcement action.

The INA provides that:

Any officer or employee of the Service authorized … shall have power without warrant … to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation … regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of [DHS] having authority to examine aliens as to their right to enter or remain in the United States.

In 2019, Harris co-sponsored S. 1243, which would have amended the bolded language above to read:

but the alien arrested shall be provided with a hearing before an immigration judge not later than 48 hours after being taken into custody to determine whether there is probable cause to believe that the alien does not have the right to enter or remain … which burden to establish probable cause shall be on [DHS]”.

Given the immigration court backlog, this proposal was the height of irresponsibility.

In 2019, Harris was an original co-sponsor of S. 2691, which would have “established within [DHS] the position of Ombudsman for Border and Immigration Enforcement Related Concerns”. The ombudsman would “establish an independent, neutral, accessible, confidential, and standardized process … to assist individuals, including aliens … in resolving complaints with respect to [CBP and ICE] … to identify and thereafter review, examine, and make recommendations to the Secretary to address chronic issues identified by the Ombudsman”. Yes, that is right, an ombudsman to assist illegal, criminal, and other removable aliens in making complaints against DHS. Maybe an ombudsman to assist the victims of crime committed by aliens would have been more beneficial. Actually, DHS during the Trump administration did just that. As Jon Feere has written:

• [In 2017, t]he Victims of Immigration Crime Engagement (VOICE) Office was established within [ICE].

• As was explained on the VOICE website … the career officials managing the office have been:

  guided by a singular, straightforward mission — to ensure victims and their families have access to releasable information about a perpetrator and to offer assistance explaining the immigration removal process. ICE wants to ensure those victimized by criminal aliens feel heard, seen and supported.

The Biden/Harris administration shut VOICE down. As Feere noted, “One of Secretary … Mayorkas’ first acts … was to shutter the VOICE office.”

What other services would S. 2691 have had the Office of the Ombudsman perform? Let me give some highlights:

The Ombudsman shall establish a Border Oversight Panel … [to] evaluate and make recommendations regarding [DHS’s] border enforcement policies, strategies, and programs along the northern and southern borders … to take into consideration the[ir] impact … on border communities, including protecting due process, civil and human rights of border residents and visitors, and private property rights of land owners … uphold domestic and international legal obligations … reduce the number of migrant deaths; and … to improve the safety of agents and officers of [CBP] and [ICE].

Hmmm. Nothing about the effective enforcement of our immigration laws or border security. Must have been on oversight.

In addition:

• The Ombudsman shall conduct an annual evaluation of all training given to agents and officers of [CBP] and [ICE]… includ[ing] whether the training … adequately addresses … best practices in community policing, cultural awareness, and carrying out enforcement actions near sensitive locations … policies for operating in locations where there are limitations on cooperation by local law enforcement … interaction with vulnerable populations … civil rights and legal protections for nationals of the United States and aliens … non-biased questioning … sensitivity towards lesbian, gay, bisexual, transgender, and queer individuals … protecting the civil, constitutional, human, and privacy rights of individuals.

• The Ombudsman shall develop, and submit to the Secretary, recommendations regarding any additional training needed by agents and officers.

One can see where this was going.

Prohibiting Voluntary Assistance from State and Local Law Enforcement

Section 287(g) of the INA provides in part that:

[DHS] may enter into a written agreement with a State, or any political subdivision … pursuant to which an officer or employee … who is determined by [DHS] to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States … may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

An agreement under this subsection shall require that an officer or employee … performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function … have received adequate training regarding the enforcement of relevant Federal immigration laws.

In performing a function under this subsection, an officer or employee … shall be subject to the direction and supervision of [DHS].

Feere has written about the success of the 287(g) program:

Local law enforcement that partners with [ICE] receives weeks of training on how to identify removable aliens that they encounter during their routine enforcement of state and local criminal law. It’s a commonsense program considering that local law enforcement, not ICE, is often the first to encounter criminal aliens.

The program has led to the arrest and removal of thousands of dangerous criminal aliens. In fiscal year 2020, state and local law enforcement trained under 287(g) encountered approximately 920 aliens convicted for assault, 1,261 convicted for dangerous drugs, 104 convicted for sex offenses/assaults, 377 convicted for obstructing police, 190 convicted for weapon offenses, and 37 convicted for homicide, to name a few crimes.

Yet, as Feere has discussed, the Biden/Harris administration has displayed extreme hostility toward the program and, as he has reported, DHS under Secretary Mayorkas has “admitted that it put a ‘hold or pause on onboarding any new partners to the 287(g) program’ and admitted further that 23 pending partnerships ‘are not operational’.”

In 2017, Harris was an original cosponsor of S. 303 and, in 2019, of S. 1440, legislation which would have eliminated the 287(g) program.

Section 287(g) also specifies that:

Nothing … shall be construed to require a [287(g)] agreement … in order for any officer or employee of a State or political subdivision … to communicate with [DHS] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present … or … otherwise to cooperate with [DHS] in the identification, apprehension, detention, or removal of aliens not lawfully present.

The legislation that Harris co-sponsored would also have turned that language upside down:

[T]he authority to inquire about or verify immigration or citizenship status and to investigate, apprehend, arrest, or detain an individual for a violation of [the INA] or any regulation authorized by th[e INA] is restricted to immigration officers and authorized employees of [DHS (with certain exceptions)].

Prohibiting Referrals for Criminal Prosecution

In 2020, Harris was an original co-sponsor of S. 4011, which demanded that “during a public health emergency, [DHS] shall suspend … referrals for prosecution under section 275 or 276” of the INA for illegal entry or illegal reentry after removal. (Emphasis added.)

The only exception? You guessed right: If there is “clear and convincing evidence, based on credible and individualized information, that the noncitizen is a threat to another person or the community”.

In 2019, Harris was an original co-sponsor of S. 661, providing that:

[DHS] … shall ensure that 1 or more qualified child welfare professionals with expertise in culturally competent, trauma-centered, and developmentally appropriate interviewing skills is available at each port of entry and Border Patrol station … . [who] shall ensur[e] that, with respect to a decision relating to … referral for prosecution of an apprehended parent or legal guardian … consideration is given to … the best interests of the child of the apprehended parent or legal guardian … family unity, to the maximum extent possible … and … any other public interest factor, including a humanitarian concern and a concern relating to the physical safety of the apprehended parent or legal guardian.

Gutting DHS’s Ability to Remove Illegal and Criminal Aliens

Prohibiting Removals

In 2020, Harris was an original co-sponsor of S. 4011, legislation that demanded 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.

So, just as “temporary protected status” (TPS) has become a quasi-permanent de facto amnesty program — with TPS status in many cases being extended to formerly illegal aliens for decades following the earthquake, hurricane, or other event giving rise to a country’s TPS designation in the first place — so would public health emergencies.

S. 4011 also provided that:

During the period beginning on the date on which a public health emergency is in effect in any State … and ending on the date that is 30 days after the date on which the public health emergency is terminated, [DOJ] shall—

• suspend all in-person immigration court proceedings;
• suspend all immigration court proceedings [other than custody determinations conducted remotely] except that cases involving individuals who are detained may proceed if the respondent and his or her counsel or representative requests in writing that the immigration court proceedings move forward telephonically or by video teleconference; [and]
• toll any deadline imposed by statute, regulation, local rule, standing order, or policy guidance requiring the appearance or other action by the respondent unless the respondent or the respondent’s counsel or legal representative submits a written request to the contrary.

It's unlikely that many aliens in removal proceedings will “request[] in writing that the immigration court proceedings move forward”. In any event, given the immigration court backlog, any legislation requiring the suspension of most immigration court proceedings is the height of irresponsibility.

Impeding DHS’s Ability to Remove

In 2018, Harris was an original co-sponsor of S. 3558, a bill seeking to impede the removal of any illegal, criminal, or other removable aliens with minor children:

[DHS] … shall ensure that 1 or more qualified child welfare professionals with expertise in culturally competent, trauma-centered, and developmentally appropriate interviewing skills is available at each port of entry and Border Patrol station…. [who] shall … maintain the best interests of children in any [action relating to the repatriation … of 1 or more individuals apprehended … for a suspected or confirmed violation of the [INA]] for family units … at a border, including by … ascertaining whether the … removal from the United States of an apprehended parent or legal guardian of a child presents a humanitarian concern or a concern relating to the physical safety of the apprehended parent or legal guardian … [and] ensuring that, with respect to a decision relating to the removal from the United States … of an apprehended parent or legal guardian … consideration is given to … the best interests of the child of the apprehended parent or legal guardian … family unity, to the maximum extent possible … and … any other public interest factor, including a humanitarian concern and a concern relating to the physical safety of the apprehended parent or legal guardian.

Given that, as mentioned, well over a third of all aliens apprehended along the southern border came as members of family units, this provision would represent a significant impediment to removal operations. And the provision would send a very clear and dangerous message to intending illegal aliens: bring minors along with you on the dangerous illicit journey to the United States and you likely won’t be removed. This would only encourage more illegal aliens to bring minors — their own children or those they claim to be so — along with them.

The provision would also send the message to prospective illegal aliens from countries with high crime rates that if they bring minors along with them, they need not worry about being removed. Never mind that, as Statista reported, in 2020 the homicide rate in St. Louis was 65.8 per 100,000 persons, in Baltimore 55.5, in New Orleans 40.1, and in Detroit 39.7, placing them among the 50 most dangerous cities in the world. Incidentally, the spate of violence in American cities did not deter the Biden/Harris administration from recommending that Afghan and Iraqi refugees be resettled in Chicago, Baltimore, St. Louis, and Philadelphia.

The bill further provided that:

With respect to children, [DHS] shall adopt fundamental child protection policies and procedures … to use all legal authorities to defer the removal from the United States of a child who faces a risk of life-threatening harm on return, including harm due to the mental health or medical condition of the child.

So, DHS should do its utmost not to remove illegal alien minors (and, consequently, their illegal alien parents) in any case where removal would imperil “mental health”. Of relevance, advocates already argue that alien deportees represent “a population that is dealing with very high, severe mental health issues and anxiety”, in the words of Alice Cepeda, professor at the University of Southern California’s Suzanne Dworak-Peck School of Social Work. And DHS should also do its utmost not to remove such illegal aliens to countries with high crime rates. This provision would apparently apply to all minors spreading havoc in U.S. cities, even those teenage alien criminals (including members of violent transnational gangs such as MS-13).

As these likely consequences of the legislation did not seem to concern Harris, in 2019 she co-sponsored similar legislation (S. 661).

The INA provides that:

Any alien who, after written notice [NTA] … has been provided to the alien or the alien’s counsel of record, does not attend a [removal] proceeding … shall be ordered removed in absentia if [DHS] establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable … . The written notice … shall be considered sufficient … if provided at the most recent address [given by the alien at which he or she may be contacted].

The INA also provides that “if personal service is not practicable”, the NTA can be provided “through service by mail to the alien or to the alien’s counsel of record, if any”.

I should note that the Congressional Research Service reports that “Among the 231,095 total removal orders issued in FY2023 … 69% (159,379) were in absentia removal orders.”

In 2019, Harris was an original co-sponsor of S. 2936, legislation designed to undermine the whole in absentia removal process:

Any alien who, after a [removal] proceeding … is rescheduled by an immigration judge due to the alien’s failure to attend such proceeding … may be ordered removed in absentia if [DHS] establishes by clear, unequivocal, and convincing evidence that … sufficient written notice was so provided … the alien is removable … and … in the case of an alien required to periodically report to [DHS], the alien has demonstrated a pattern of failing to report.

So, if an alien required to periodically report to DHS has not demonstrated a “pattern” of failing to report, the alien cannot be issued an in absentia removal order, even if he or she fails to report to DOJ for removal proceedings.

Further, “the certificate of service for the notice [shall] indicate[] that oral notice and a recitation of the consequences of failure to appear were provided … in the native language of the alien; or … in a language the alien understands.” This language was apparently designed to prevent DHS from issuing NTAs by mail, which seemingly cannot provide “oral notice”. Again, making it as hard as possible for DHS to seek to remove removable aliens.

The bill got one more shot in: A removal “order may be rescinded … if the alien has a pending application for asylum, withholding of removal, or protection under the Convention against Torture … or demonstrates that he or she has a credible claim to any such protection”. But what of aliens who were denied such relief in their removal proceedings and apply again after receiving final removal orders in order to frustrate their removals? What of aliens who never even sought such relief during their removal proceedings and then apply after receiving final removal orders, again to frustrate their removals?

Providing Taxpayer-Funded Lawyers to Aliens in Removal Proceedings

The INA provides that:

In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.

In 2019, Harris was an original co-sponsor of S. 662, S. 1445, and S. 2113, bills allowing the attorney general to “appoint or provide counsel, at Government expense, to aliens in immigration proceedings.” As I have written, “[s]hould that happen”, it would result in “the erection of billboards all over the border, and all over the world for that matter, proclaiming ‘You’ve Got a Smuggler? You’ve Got a Lawyer!’”.

S. 662, S. 1445, and S. 2113 went further and would have required that “In any removal proceeding and in any appeal proceeding before the Attorney General from any such removal proceeding, an unaccompanied alien child … shall be represented by Government-appointed counsel, at Government expense.”

And S. 2936, co-sponsored by Harris in 2019, went even further by requiring that:

[T]he Attorney General [shall] appoint counsel, at the expense of the Government if necessary … to represent in [removal] proceedings any alien who has been determined … to be … a child … a particularly vulnerable individual, such as … a person with a disability … or … a victim of abuse, torture, or violence … or … an individual whose circumstances are such that the appointment of counsel is necessary to help ensure fair resolution and efficient adjudication of the proceedings.

If Trump Thought of It — Ban It

The Migrant Protection Protocols/Remain in Mexico

The INA provides that an alien applicant for admission “arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States” who the examining immigration officer determines is not clearly and beyond a doubt entitled to be admitted may be returned by DHS “to that territory pending a [removal] proceeding” in immigration court.

As I have noted in the New York Post, “all Trump’s predecessors possessed this potent statutory tool, yet only Trump used it.” On December 20, 2018, DHS Secretary Kirstjen Nielsen announced that DHS “will begin implementation of” this power “on a large-scale basis to address the migration crisis along our southern border” — in an initiative called the “Migrant Protection Protocols” (MPP) and “Remain in Mexico”. As DHS explained, this would “provide a safer and more orderly process that will discourage individuals from attempting illegal entry and making false claims to stay in the U.S.”

MPP was wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control (prior to the arrival of the Covid-19 pandemic, at which point DHS carried out its obligations to protect the public health under Title 42 by expelling aliens outside of the strictures of the INA).

In 2021, the U.S. District Court for the Northern District of Texas wrote in Texas v. Biden that DHS had found MPP to be extraordinarily effective:

• DHS noted … that ‘‘MPP has been an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system.”

• DHS found ‘‘[b]order encounters with Central American families — who were the main driver of the crisis … have decreased by approximately 80%.’’

• DHS stated [that it] “has observed a connection between MPP implementation and decreasing enforcement actions at the border — including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP”.

MPP was truly the MVP of border enforcement. Then, as the Fifth Circuit Court of Appeals noted, the district court “pointed to evidence that ‘the [Biden/Harris administration’s attempted] termination of MPP has contributed to the current border surge’”.

In 2020, Harris was an original co-sponsor of S. Res. 484, “call[ing] upon the United States Government … to ensure that no funds be made available by any Act to implement or enforce [MPP]”. And in 2019, she was an original co-sponsor of S. 1445, which proclaimed that:

It is the sense of Congress that … individuals of any nationality, who enter the United States from Mexico and request humanitarian protection, such as asylum, in the United States … are not subject to [the INA’s provision authorizing MPP] … [and] cannot be returned to Mexico while their request for humanitarian protection is pending.

Title 42 Expulsions

Section 265 of Title 42 provides that:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General … shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.

Section 268 then provides that “It shall be the duty of [DHS] to aid in the enforcement of quarantine rules and regulations [including those issued pursuant to § 265].”

On March 20, 2020, in reaction to the Covid-19 pandemic, the director of the U.S. Centers for Disease Control and Prevention (CDC) issued an order exercising the authority under § 265 to prohibit the introduction of “persons traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a congregate setting in a land Port of Entry (POE) or Border Patrol station at or near the United States borders with Canada and Mexico, into the United States”. The director requested that DHS aid in the enforcement of the order, aid that DHS was required to provide.

The order, and subsequent extensions (Title 42 expulsions began March 21, 2020, and ended on May 11, 2023) were implemented to safeguard the public health. However, they had an extraordinarily beneficial effect on border security, resulting in 206,783 “expulsions” in FY 2020, 765,804 in FY 2021¹, 1,103,961 in FY 2022, and 579,084 in FY 2023. The orders had such a dramatic effect because they relieved DHS from having to operate in consonance with the strictures of Title 8 put in place regarding applicants for asylum, requirements that have been abused at an ever-accelerating pace by alien smugglers and their clients. As I noted in the New York Post, “Since WWII, all Trump’s predecessors possessed this potent statutory tool, yet only Trump used it.”

In 2020, Harris was an original co-sponsor of S. 4011, which declared that:

• [E]xpulsions at the border … violate longstanding, congressionally mandated protections for asylum-seekers … and … fail to protect public health[.]

• [L]eading public health experts have urged United States officials to withdraw the order enabling mass expulsion of asylum seekers, noting border expulsions fail to further public health and implicate serious human rights concerns[.]

These were interesting conclusions, as the CDC itself concluded in October 2020 that:

The risks of COVID-19 transmission and overutilization in community hospitals serving domestic populations would have been greater absent the ... Order[, which also] reduced the risk of COVID-19 transmission in POEs and Border Patrol stations, and thereby reduced risks to DHS personnel and the U.S. health care system. The public health risks to the DHS workforce — and the erosion of DHS operational capacity — would have been greater absent the ... Order … [which] has significantly reduced the population of covered aliens held in congregate settings in POEs and Border Patrol stations, thereby reducing the risk of COVID-19 transmission for DHS personnel and others within these facilities.

In any event, Harris’s bill provided that “Federal funds may not be used by [DHS] to expel, pursuant to [Title 42] any noncitizen who … entered or is entering the United States at a port of entry … [or] crossed or is crossing the United States border between ports of entry.”

Third-Country Transit Asylum Eligibility Bar

In 2019, Harris was an original co-sponsor of S. 2936, which provided that a “stay by an [asylum] applicant in a third country [before coming to the U.S.] that does not amount to firm resettlement shall not be grounds for discretionary denial of asylum”.

This is interesting because on May 11, 2023, the Biden/Harris administration’s DHS Secretary Mayorkas and Attorney General Garland promulgated a final rule providing that:

A rebuttable presumption of ineligibility for asylum applies to an alien who enters the United States from Mexico … without documents sufficient for lawful admission … and whose entry was … after the alien traveled through a country other than the alien’s country of citizenship … that is a party to the 1951 United Nations Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.

Mayorkas and Garland had emphasized the need “to impose consequences on certain noncitizens who fail to avail themselves of the range of lawful, safe, and orderly means for seeking protection … elsewhere”, noting that “Mexico has made notable strides in strengthening access to international protection … and as a result has now emerged as one of the top countries receiving asylum applications in the world.”

Hmmm.

212(f) Suspension

Section 212(f) of the INA provides that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

In rejecting a challenge to President Trump’s use of § 212(f) to impose entry restrictions on nationals of countries that presented national security risks, the Supreme Court concluded in 2018 in Trump v. Hawaii that:

• By its terms, §[212](f) exudes deference to the President in every clause.

• [Plaintiffs’] arguments are grounded on the premise that §[212](f) not only requires the President to make a finding that entry “would be detrimental to the interests of the United States,” but also to explain that finding with sufficient detail to enable judicial review. That premise is questionable … .

  Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with … the deference traditionally accorded the President in this sphere … . [W]hen the President adopts “a preventive measure ... in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.” [quoting the Court’s 2010 decision in Holder v. Humanitarian Law Project]

The Court also referenced the fact that President Trump’s “Proclamation states that it does not disclose every ground for the country-specific restrictions because ‘Describing all of those reasons publicly ... would cause serious damage to the national security of the United States, and many such descriptions are classified.’”

The Court in Humanitarian Law Project had come to the sage conclusion that:

[W]hen it comes to collecting evidence and drawing factual inferences in th[e] area [“of national security and foreign relations”], “the lack of competence on the part of the courts is marked,” … and respect for the Government's conclusions is appropriate.

One reason for that respect is that national security and foreign policy concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess. The dissent slights these real constraints in demanding hard proof — with “detail,” “specific facts,” and “specific evidence” — that plaintiffs' proposed activities will support terrorist attacks … . That would be a dangerous requirement. In this context, conclusions must often be based on informed judgment rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government.

Despite the Supreme Court’s decisions in Hawaii and in Humanitarian Law Project, in 2019 Harris was an original co-sponsor of S. 1123, legislation designed to substantially enfeeble the president’s § 212(f) powers by amending the provision to provide that:

[I]f the Secretary of State, after consultation with the Secretary of Homeland Security, determines, based on credible facts, that the entry of any aliens or of any class of aliens into the United States should be suspended or restricted to address specific acts that undermine the security or public safety of the United States; human rights; democratic processes or institutions; or international stability, the President may temporarily … .

[T]he President, the Secretary of State, and the Secretary of Homeland Security … shall provide specific evidence supporting the determination … shall narrowly tailor the suspension or restriction to meet a compelling governmental interest … shall use the least restrictive means possible to achieve the specified governmental interest … and … shall consider waivers to any class-based restriction or suspension and apply a rebuttable presumption in favor of granting family-based and humanitarian waivers.

Thus, Harris decided to co-sponsor legislation imposing the same sort of requirements that the Supreme Court has labeled as dangerous.

Immigration Enforcement Priorities

On January 25, 2017, President Trump issued an Executive Order (13768) proclaiming that:

It is the policy of the executive branch to … [e]nsure the faithful execution of the immigration laws of the United States … against all removable aliens … [m]ake use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws … [e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law … [e]nsure that aliens ordered removed … are promptly removed … and … [s]upport victims, and the families of victims, of crimes committed by removable aliens.

Further, the EO provided that:

[DHS] shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C) [criminal, security, terrorism, and misrepresentation grounds of inadmissibility], 235 [for aliens not entitled to be admitted], and 237(a)(2) and (4) [criminal, security, and terrorism grounds of deportability] of the INA … as well as removable aliens who … [h]ave been convicted of any criminal offense … charged with any criminal offense, where such charge has not been resolved … committed acts that constitute a chargeable criminal offense … engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency … abused any program related to receipt of public benefits … [a]re subject to a final order of removal, but who have not complied with their legal obligation to depart … or … in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

In 2017, Harris was an original co-sponsor of S. 415, and, in 2019, of S. 1591, bills that complained that President Trump’s EO dared to “make[] the vast majority of unauthorized individuals priorities for removal and aims to withhold critical Federal funding to sanctuary cities”, and that then would have rescinded the EO.

Border Security

On January 25, 2017, President Trump issued an Executive Order (13767) proclaiming that “It is the policy of the executive branch [among other things] to … secure the southern border … through the immediate construction of a physical wall.” The EO further provided that:

• [DHS] shall immediately take the following steps to obtain complete operational control … of the southern border … immediately plan, design, and construct a physical wall along the southern border … [and i]dentify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of [such] wall.

• [DHS] shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.

• [DHS] shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law … . including the termination of the practice commonly known as ‘‘catch and release,” whereby aliens are routinely released in the United States shortly after their apprehension for violations of immigration law.

• [DHS] shall take appropriate action … to ensure that aliens [subject to return to contiguous territory] are returned to the territory from which they came pending a formal removal proceeding.

In 2017, Harris was an original co-sponsor of S. 668, which would have rescinded that Executive Order.

Enabling Asylum Fraud

The INS reported that in fiscal year 1974, only 2,716 aliens requested asylum. Fast forward five decades: According to DHS, in fiscal year 2022 aliens filed 238,841 affirmative asylum applications with USCIS; and according to DOJ’s Executive Office for Immigration Review (home to the immigration courts), in fiscal year 2023 aliens filed 479,689 defensive asylum applications (in the context of removal proceedings) and this fiscal year are projected to file (annualizing results through the second quarter) over 668,000.

In 1974, even with such low numbers, INS concluded that “Many [asylum] requests were found to be frivolous and were being used as a stratagem to remain longer in the United States or to avoid deportation.”

The level of fraud has since ballooned along with the number of claimants. In 2011, Sam Dolnick reported in the New York Times that:

• A shadowy industry dedicated to asylum fraud thrives in New York. ... Immigrants peddle personal accounts ripped from international headlines.

• The embellished stories go in and out of fashion along with the news of the day.

• Of course, thousands of those claims are legitimate. But each cataclysm provides convenient cover stories for immigrants [seeking to make claims].

Three years later, Kirk Semple, Joseph Goldstein, and Jeffrey Singer wrote an article in the New York Times 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.

• Mr. Kwong said the cases were easy to fake.

• Narratives and documents are recycled from client to client, with the names and dates changed — though sometimes the lawyers forget to do even that.

Fast forward to the present day, where even the Biden/Harris administration’s DHS Secretary Mayorkas and Attorney General Garland have acknowledged that:

• [M]any individuals [placed into “expedited” removal proceedings] who avail themselves of the credible fear [of persecution] process [in order to be released from detention and supposedly apply for asylum] do not have meritorious claims.

• [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 current asylum system — in which most migrants who are initially deemed eligible to pursue their claims ultimately are not granted asylum in the subsequent ... removal proceedings — has contributed to a growing backlog of cases.

• [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.

Terminating Time Limits

The INA provides that:

[An 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 [absent “changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing”].

The House Judiciary Committee’s report on H.R. 2202, the House’s foundation for what became IIRIRA, explained the rationale for 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.

And Lamar Smith, then-chairman of the House Judiciary Committee immigration subcommittee and author of H.R. 2202, and Edward Grant, my then-colleague on the staff of the immigration subcommittee, noted that “Not only is this addition a reasonable requirement for a person who ostensibly is fleeing persecution, but it also is one that prevents abuse of the system.”

In 2019, Harris was an original co-sponsor of S. 2936, which would have entirely eliminated the time limit.

Losing Credibility

The INA provides that:

Considering the totality of the circumstances, and all relevant factors, 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, and considering the circumstances under which … made), 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, or any other relevant factor.

As Congress explained in 2005 regarding this provision in the conference report to the appropriations bill containing the “REAL ID Act”:

• This [provision] will allow Immigration Judges [IJ] and the BIA [Board of Immigration Appeals] to follow commonsense standards in assessing the credibility of asylum applicants better allowing them to identify and reject fraudulent claims … . [S]uch a determination must be reasonable and take into consideration the individual circumstances of the specific witness and/or applicant.

• Congress expects that the trier of fact will describe those factors that form the basis of the trier’s opinion. This is true even where the trier of fact bases a credibility determination in part or in whole on the demeanor of the applicant.

• Courts have recognized the expertise that [IJs] bring to this task. As the Ninth Circuit has held … “An [IJ] alone is in a position to observe an alien’s tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.”…

  In assessing an applicant’s demeanor for purposes of making a credibility assessment, Congress anticipates that triers of fact will rely on those aspects of demeanor that are indicative of truthfulness or deception … . [I]n explaining why it “granted special deference to the IJ’s eyewitness observations regarding demeanor evidence,” the Ninth Circuit … [held that] “Weight is given to the … judge’s determinations of credibility for the obvious reason that he or she ‘sees the witnesses and hears them testify, while the [BIA] and the reviewing court look only at cold records.’ All aspects of the witness’s demeanor — including the expression of his countenance, how he sits or stands, whether he is inordinately nervous, his coloration during critical examination, the modulation or pace of his speech and other non-verbal communication — may convince the observing trial judge that the witness is testifying truthfully or falsely.”

Harris obviously felt differently. In 2019, she was an original co-sponsor of S. 2936, which provided 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 … . In assessing credibility, a trier of fact may consider the detail and specificity of information provided by the applicant, the internal consistency of the applicant’s statements, and the consistency of the applicant’s statements with available external information. In considering such information and statements, the trier of fact shall consider the applicant’s contextual circumstances, including … exposure to trauma … age … gender, sexual orientation, or gender identity … educational background … physical or mental health issues … shame, stigma, or denial … communication difficulties … intercultural barriers … and … the circumstances under which such statements were made.

• [A]ny credibility finding … shall be consistent with current scientific literature relating to behavioral indicators of truth-telling, the nature of traumatic memories, and the ability of trauma survivors to recall aspects of, and surrounding, a traumatic event.

• If the trier of fact determines that there are inconsistencies or omissions, the alien shall be given an opportunity to explain and provide support or evidence to clarify such inconsistencies or omissions.

One can easily guess what outcome this provision was designed to achieve — to make it nearly impossible for IJs to make negative credibility determinations. At least the bill was pro-business — for what the New York Times story called the “Industry of Lies”.

Putting the Asylum Officers in Charge of the Asylum

Asylum officers by and large believe that the actions taken by the Trump administration to remedy the southern border crisis were misguided, if not actually malevolent. One officer called MPP and the third country transit asylum eligibility bar rule “a supervillain plan” that made him “feel[] horrified, even physically sickened”. The Los Angeles Times reported that an asylum officer quit after deciding that “[He] wasn’t going to implement President Trump’s latest policy to restrict immigration. ... ‘They’re definitely immoral ... [a]nd I’m not doing them’.” The Times found that:

[A]cross the country — according to asylum officers ... as well as government officials — asylum officers are calling in sick, requesting transfers, retiring earlier than planned and quitting — all to resist Trump administration immigration policies. ... “What’s my moral culpability in that? ... My signature’s on that paperwork. And that’s something now that I live with.”

These attitudes may not be surprising given that the prior work experience of asylum officers usually entails working in the immigrant rights advocacy community. The Intercept has noted that:

[The former] director of the asylum division ... had previously worked as a lawyer at ... an immigrant legal services nonprofit, and the asylum officers who worked under him … have generally had similar backgrounds. Many are highly educated attorneys who have worked in nonprofits assisting [illegal aliens] with asylum claims rather than trying to deport them.

In 2019, Harris was an original co-sponsor of S. 2936, a bill that provided that asylum officers, rather than IJ’s, “shall have initial jurisdiction over any asylum application”.

Increasing Incentives for Fraud

The INA provides that while an “applicant for asylum is not entitled to employment authorization … such authorization may be provided … [but] shall not be granted … prior to 180 days after the date of filing of the application for asylum.” The House Judiciary Committee’s report on H.R. 2202 explained the rationale: “The asylum system … has been subject to abuse by [aliens] who filed non-legitimate claims simply in order to extend their stay in the U.S. and to receive work authorization.”

However, the Biden/Harris administration has often been able to evade even this meager 180-day waiting period by granting parole to well over a million aliens, including apprehended aliens released from detention. Under USCIS regulations, such aliens can apply for work authorization with no waiting period. As DHS states, “Under current employment authorization regulations, there is no waiting period before a noncitizen parolee in this circumstance [an inadmissible alien granted parole to enter the U.S. through the CBP One App, including those who will make claims for asylum] may apply for employment authorization.”

DHS under the Trump administration issued a regulation providing that “aliens paroled from custody after having established [in expedited removal proceedings] a credible fear … of persecution” could not use this means of evading the waiting period for employment authorization. In 2022, the U.S. District Court for the District of Columbia in Asylumworks v. Mayorkas vacated the rule on the basis of Chad Wolf not having been lawfully appointed as acting DHS secretary when the rule was promulgated.

Of course, DHS under the Biden administration failed to appeal the district court’s ruling, even though Secretary Mayorkas and Attorney General Garland have admitted that “As … larger numbers of non-Mexicans [are apprehended at the border] — who are far more likely to make asylum claims — and as the time required to process and remove [those] ineligible for protection has grown (during which time individuals become eligible to apply for employment authorization), the apprehension of border crossers has had limited deterrent effect.”

In 2019, Harris was an original co-sponsor of S. 2936, which not only would have brought the 180-day waiting period down to 30 days, but also would have required DHS to provide asylum applicants with work authorization:

[DHS] shall authorize employment for an applicant for asylum who is not in detention and the application for asylum of whom has not been determined frivolous … . An applicant for asylum who is not otherwise eligible for employment authorization shall not be granted such authorization before the date that is 30 days after the date of filing of the application for asylum.

Protecting Alien Terrorists

The INA provides that, for purposes of the terrorism grounds of inadmissibility (for aliens not formally admitted to the U.S., whether or not physically present in the U.S.) and deportability (for aliens already admitted), a terrorist organization can be 1) designated as a foreign terrorist organization by the Secretary of State; 2) otherwise designated by the Secretary of State as a terrorist organization after finding that it engages in terrorist activities; or 3) a group that engages in, or has a subgroup which engages in, terrorist activities, regardless of whether it has been designated.

In 2019, Harris was an original co-sponsor of S. 2936, which, under the guise of “Protecting Victims of Terrorism from Being Defined as Terrorists”, purposefully weakened the terrorism grounds of inadmissibility and deportability regarding “undesignated” terrorist organizations.

• Under the INA, an alien who is a representative of a terrorist organization is inadmissible/deportable.
  • S. 2936 provided that an alien representative of a terrorist organization yet to be designated is not inadmissible/deportable unless “there are reasonable grounds for regarding the alien as a danger to the security of the United States”. So if the alien only wants to murder Israelis or Indians or Iraqis, Harris considers that none of our business.
• Under the INA, an alien who is a member of a designated terrorist organization is inadmissible/deportable, as is a member of a terrorist organization yet to be designated “unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization”.
  • S. 2936 provided that an alien member of a terrorist organization yet to be designated is not inadmissible/deportable unless additionally “there are reasonable grounds for regarding the alien as a danger to the security of the United States”.
• Under the INA, an alien who persuades others to support any terrorist organization is inadmissible/deportable.
  • S. 2936 provided that an alien who persuades others to support a terrorist organization yet to be designated is not inadmissible/deportable.
• Under the INA, an alien who has received military-type training from or on behalf of any terrorist organization is inadmissible/deportable.
  • S. 2936 provided that an alien who has received military-type training from a terrorist organization yet to be designated is not inadmissible/deportable unless “there are reasonable grounds for regarding the alien as a danger to the security of the United States”.
• Under the INA, an alien who solicits funds or other things of value for a designated terrorist organization is inadmissible/deportable, as is an alien who solicits for a terrorist organization yet to be designated unless the alien “can demonstrate by clear and convincing evidence” that he or she “did not know, and should not reasonably have known, that the organization was a terrorist organization”.
  • S. 2936 provided that an alien who solicits for a terrorist organization yet to be designated is not inadmissible/deportable unless additionally “there are reasonable grounds for regarding the alien as a danger to the security of the United States”.
• Under the INA, an alien who commits an act that he or she knows, or reasonably should know, affords material support to a designated terrorist organization (or to any of its members) is inadmissible/deportable, as is an alien who affords support to a terrorist organization (or its members) yet to be designated unless the alien “can demonstrate by clear and convincing evidence” that he or she “did not know, and should not reasonably have known, that the organization was a terrorist organization”.
  • S. 2936 provided that an alien who affords material support to a terrorist organization yet to be designated is not inadmissible/deportable unless additionally “there are reasonable grounds for regarding them as a danger to the security of the United States”.

The INA grants the attorney general special detention power regarding certain alien terrorists:

• The Attorney General may certify an alien … if … ha[ving] reasonable grounds to believe that the alien … is described in section 212(a)(3)(A)(i) [seeks to enter the U.S. to violate espionage, sabotage, or export control laws] or 212(a)(3)(A)(iii) [seeks to engage in activity a purpose of which is the opposition to, or the control or overthrow of, the U.S. government by force, violence, or other unlawful means], 212(a)(3)(B) [terrorism], 237(a)(4)(A)(i) [has or is trying to violate espionage, sabotage, or export control laws], 237(a)(4)(A)(iii) [has engaged or is engaging in activity a purpose of which is the opposition to, or the control or overthrow of, the U.S. government by force, violence, or other unlawful means], or 237(a)(4)(B) [terrorism] … or … is engaged in any other activity that endangers the national security of the United States.

• [T]he Attorney General shall [with certain exceptions] maintain custody of … a[ certified] alien [so long as the alien is placed in removal proceedings or charged with a criminal offense within seven days] until the alien is removed from the United States…. [S]uch custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified.

And regarding the Alien Terrorist Removal Court (ATRC), “the Attorney General may … take into custody any alien with respect to whom an application [to seek the alien’s removal where the Attorney General has classified information that the alien is terrorist] has been filed” with the ATRC, except that lawful permanent residents (LPR) have a right to a release hearing.

In 2019, Harris was a co-sponsor of S. 1243, legislation that would have eliminated mandatory detention for certified alien terrorists and would have given all aliens in ATRC proceedings the same rights as currently held by LPRs.

Conclusion

The legislation introduced or co-sponsored by Sen. Harris that this report has reviewed was clearly designed to negatively impact the enforcement of our nation’s immigration laws. Just as worrisome, in many cases the legislation displayed a remarkable level of naïveté and delusional thinking. Should this legislation reflect what Kamala Harris’s immigration policies would be like as president, her administration would out-extreme even that of President Biden and his impeached Secretary of Homeland Security Alejandro Mayorkas.

End Note

¹ This represents an annualization of the number of expulsions (255,268) in the first third of the fiscal year (October 2020 through January 2021) for the U.S. Border Patrol and October 2020 through December 2020 for USCBP’s Office of Field Operations (ports of entry).