When asked if he had done everything he could do to secure the border, President Biden said he can’t get it done with executive power alone. Consequently, he instructed his team to engage in “negotiations with a bipartisan group of senators to seriously, and finally, address the border crisis.”
The negotiations resulted in the Senate Border Act of 2024 (Border Act), which, he says, if enacted, would be “the toughest and fairest set of reforms to secure the border we’ve ever had in our country.” Among other things, it would establish “a new emergency authority to shut down the border when it becomes overwhelmed,” and he would use that authority the day he signed the bill into law.
But Speaker of the House Mike Johnson (R-La.) claims that Biden hasn’t really tried to secure the border. In fact, since his first day in office, his administration has systematically undermined America’s border security.
I share Johnson’s skepticism about Biden’s intentions. He caused the border crisis with his immigration policies, and the Border Act his team negotiated would not eliminate those policies.
Immigration expert Steven Camarota also thinks that Biden caused the border crisis. Illegal border crossings increased dramatically around the time he took office. This sudden increase surely was caused in large part by Biden’s campaign promises to loosen asylum standards, curtail enforcement and pass an amnesty. These promises created the reasonable belief among undocumented migrants that they would be granted entry at the southern border without a visa.
Moreover, Biden has kept most of his promises, and he has established programs for bypassing the visa system to let undocumented migrants into the country without visas.
His administration has used “catch and release” to let more than 2.3 million migrants into the country without visas during the first three years of the Biden presidency; the number of releases would have been much larger if the administration had not had to expel 2.5 million migrants pursuant to the pandemic-era Title 42 order.
Biden doesn’t need the Border Act to end catch and release. It’s his policy. He could end it by issuing an executive order telling appropriate agency heads to stop doing it.
In fact, the Border Act would permit him to release up to 5,000 illegal border crossers a day.
It has a provision that would give Biden the authority to shut down the border, but it wouldn’t require him to shut down the border unless the seven-day average of illegal crossings rises above 5,000 per day — that’s almost 2 million per year.
In addition, the Border Act doesn’t provide a way to stop him from ignoring the shut-down requirement the way he has ignored the statutory immigration enforcement provisions. And it wouldn’t terminate the “legal pathways” his administration has created to let migrants into the country without visas. Such pathways include special processes for paroling up to 30,000 migrants a month into the country from Cuba, Haiti, Nicaragua and Venezuela, and a Family Reunification Parole Process for nationals from other countries.
The Border Act wouldn’t end the administration’s CBP One mobile application program either. This program permits migrants without visas to schedule inspections at a port of entry on the southwest border. Nearly 250,000 migrants have been inspected as of August 2023, and 99.7 percent of the inspections resulted in letting the migrant into the country. The administration also has used the CBP One program to bring 320,000 inadmissible immigrants from foreign countries to American airports.
Lastly, the Border Act wouldn’t require the administration to enforce the immigration laws against undocumented migrants who have reached the interior of the country. DHS Guidelines for the Enforcement of Civil Immigration Law limit enforcement actions to deportable migrants “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” This means that the illegal border crossers the administration releases into the interior of the country are shielded from enforcement proceedings if they are just here in violation of our laws.
They aren’t likely to be deported in any case. There were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and ICE only removed 142,580 of them.
The release of millions of migrants into the country who claim to be asylum seekers overwhelmed the immigration court, which then caused a backlog crisis. The immigration court had a backlog of 1,290,766 cases when Biden began his presidency. It is more than 3,524,051 cases now. Individual immigration judges have an average of more than 4.500 pending cases, and the average wait time for a hearing is 4.3 years.
And the administration is not making progress on eliminating the backlog. As of the end of March in fiscal 2024, the immigration court had received 1,155,024 new cases, and it only had closed 434,996. At this rate, the court would have to have almost three times as many judges just to keep up with new cases.
The Migration Policy Institute says this combination of years-long backlogs and unlikely returns is at the heart of our broken asylum system, and “[t]hat brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.”
It may be necessary to suspend the admission of asylum seekers to give the immigration court a chance to catch up, which Biden could do with the authority Congress delegated to presidents in INA Section 212(f).
The Supreme Court held in Trump v. Hawaii that section 212(f) “exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The sole prerequisite is that the president find that the entry of the covered aliens “would be detrimental to the interests of the United States.”
Moreover, neither the legislative history of section 212(f) nor historical practice justifies departing from its clear text.
We do need immigration reform legislation, but we won’t get the legislation needed to secure the border when Biden’s team leads the negotiations. That puts the fox in charge of guarding the hen house.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanhillop-eds.blogspot.com.