Trump’s eye-opening scorecard on border security

Donald Trump has been very persistent in trying to secure the border and enforce the immigration laws in the interior of the country, but he has encountered unrelenting resistance.

Successes

1. Prosecuted a record-breaking number of immigration-related criminal cases

In fiscal 2019, Trump prosecuted the highest number of immigration-related criminal offenses since record keeping began more than 25 years ago.

• Charged 25,426 defendants with felony Illegal Reentry;
• Charged 80,866 defendants with misdemeanor Improper Entry; and
• Charged 4,297 defendants with Alien Smuggling.

2. Travel Ban

When Trump was campaigning for the presidency, the DHS official in charge of vetting Syrian and other foreign Muslim refugees told the Senate Subcommittee on Immigration that no police or intelligence databases existed to check the backgrounds of refugees from those countries.

When Trump became the president, he issued a travel ban executive order to suspend the entry of people from seven countries that the Obama administration had designated as countries of concern. 

The reason given for the suspension was to keep individuals from those countries out until the administration could determine what screening and vetting procedures are needed to ensure that the admission of individuals from such countries will not pose a security risk.

The courts created a “Trump exception” to settled law on presidential powers to be able to block the travel ban, finding, primarily on the basis of Trump’s campaign statements, that it discriminated against the Muslim religion.

However, the Supreme Court held that the travel ban was a lawful exercise of the broad discretion granted the president by section 212(f) of Immigration and Nationality Act (INA).

3. Application of immigration law to all removable aliens

President Barack Obama rejected the statutory deportation grounds in section 237(a) of the INA and created his own list of deportable alien classes. Trump reversed this policy in an executive order in which he declared that the statutory deportation grounds apply to all removable aliens.

4. Border wall

The Democrats prevented Trump from getting the funds he needs for his border security measures, such as a border wall.

Trump declared a national emergency and reallocated funds from military construction projects to build walls at strategic locations along the border.

A federal court issued a temporary injunction to prevent him from using funds appropriated for other purposes to construct a border wall.

However, the Supreme Court lifted that injunction, allowing Trump to continue construction while the lower courts review the merits of the objection to using the funds for that purpose. This indicates that the Court thinks it is likely that Trump will prevail on the merits of the suit.

5. Interim Final Rule (IFR)

The IFR makes aliens ineligible for asylum in the United States if they have not sought protection from persecution from the countries they traveled through en route to the United States.

A district court in California issued a preliminary, nationwide injunction blocking the implementation of the IFR while a lawsuit challenging its legality moves forward. The Supreme Court lifted that injunction and permitted Trump to continue with the implementation of the IFR pending the outcome of the lawsuit.

6. Migrant Protection Protocols (MPP)

The MPP provides that aliens attempting to enter the U.S. from Mexico without proper documentation may be returned to Mexico to wait outside of the U.S. for the duration of their immigration proceedings. Mexico has agreed to provide them with humanitarian protections.

There have been legal challenges, but the Supreme Court has ruled that the Trump administration can implement the MPP while it faces the challenges. As of Sept. 9, 2019, DHS had returned 42,000 migrants to Mexico under the MPP.

Failures

1. The Flores Settlement Agreement (FSA)

The FSA prohibits the detention of children for more than 20 days. All Hell broke loose when this forced Trump to separate children from parents who were being prosecuted for making an illegal entry pursuant to a zero-tolerance enforcement policy that was intended to reduce such entries.

This forced Trump to release detained adults who have children with them when he releases their children. This “catch and release” practice became a powerful pull factor that resulted in a big increase in illegal crossings with children.

Between October 2018 and August 2019, the border patrol apprehended 457,871 aliens who made an illegal crossing with a child.

Trump proposed a regulation that would establish high standards of care to make it possible to detain children without violating the main objective of the agreement, which was to ensure appropriate care.

However, a California district court issued a permanent injunction preventing Trump from implementing it. 

2. Immigration court backlog crisis 

The backlog of the 442-judge immigration court was 542,411 cases when Trump began his presidency. By the end of August 2019, the backlog had reached 1,007,155 cases, with an average wait for a hearing of 696 days. This makes it impossible to put newly apprehended aliens in removal proceedings without moving someone else out of line who is already scheduled for a hearing.

Even with no new cases, it would take almost five years to clear the backlog.

3. Expedited Removal Proceedings

Aliens in expedited removal proceedings are removed summarily unless they have a credible fear of persecution, which entitles them to an asylum hearing before an immigration judge.

Previous administrations limited expedited removal to aliens apprehended within 100 miles of the border within 14 days of making an illegal entry. DHS has announced an expansion of expedited removal to the full extent authorized by law, which means that it will apply to aliens who were not admitted or paroled into the United States who have been here less than two years.

Advocacy groups challenged the expansion, arguing that the announcement violated the Administrative Procedure Act because DHS had failed to comply with notice-and-comment procedures. A federal district court granted a preliminary injunction, blocking the expansion pending the outcome of that lawsuit.

The Score

Trump has been able to implement most of his immigration measures, but the delays his opponents have caused by withholding funding and fighting every measure in court have prevented him from achieving his objectives.

When his term ends, the border will still be open, and an unmanageable immigration court backlog will still prevent meaningful interior enforcement.

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 on Twitter @NolanR1