A group of 102 immigration advocacy organizations last month sent a joint letter to President Biden accusing him of failing to fulfill his commitment to build a “safe, orderly, and humane immigration system.” According to these organizations, his administration has pursued cruel, unlawful, and ineffective deterrence-based policies that extend rather than dismantle the previous administration’s approach to migration.
They urge him to abandon his policies that deter or punish people for crossing the southern border to seek protection and reaffirm America’s commitment to protecting people fleeing persecution.
It won’t be possible for Biden to provide asylum seekers with the care these organizations want them to have until he ends the surge in illegal border crossings that he caused by trying to fulfill his campaign promises. Illegal crossings have risen from 75,318 in January, when Biden took the oath of office, to 199,777 in July.
The immigration court had a backlog of 1,382,463 cases as of the end of July, and the average wait for a hearing was 953 days.
And Biden won’t be able to end the surge in illegal crossings without help from the Mexican government to screen asylum seekers before they make an illegal crossing into the United States. Waiting until they have already made an illegal crossing obviously isn’t working.
Moreover, Biden has to find ways to do this that won’t violate America’s immigration laws. He has had too many major setbacks in court already.
On Jan. 20, 2021, Biden’s first day in office, he issued a 100-day removal moratorium that violated section 241(a)(1)(A) of the Immigration and Nationality Act (INA), which requires DHS to remove aliens who are subject to a final deportation order within 90 days.
On June 1, 2021, he terminated the Migrant Protection Protocols (also known as the Remain in Mexico Program), which caused his administration to systematically violate the mandatory detention provisions in sections 236(c) (criminal aliens) and 241(a)(2) (aliens subject to final deportation orders). Biden cannot lawfully terminate the protocols until he has the capacity and the willingness to comply with those provisions.
In memoranda issued in in January and February, he imposed restrictions on ICE officers which essentially prohibited them from even questioning (let alone detaining and removing) most removable criminal aliens. This violated section 236(c) of the INA, which requires DHS to take into custody and hold certain incarcerated criminal aliens when they are released from jail or prison.
And on July 27, 2021, Biden issued a Blueprint for a Fair, Orderly and Humane Immigration System which, among other things, would authorize asylum officers to adjudicate asylum claims for undocumented aliens arriving at the border who establish clear and just eligibility standards that harmonize the U.S. approach with international standards.
This will violate section 235 of the INA which provides expedited removal proceedings for undocumented asylum-seeking aliens who have made an illegal entry or who are seeking admission at a port of entry. That section of the law also limits the authority of asylum officers to interviewing the asylum seekers to determine whether they have a credible fear of persecution.
If an asylum seeker establishes a credible fear of persecution she or she is entitled to an asylum hearing before an immigration judge.
Mutual assistance
The United States is supporting Mexico’s immigration control and border security efforts, but it could do more, such as providing funds for the economic development of southern Mexico.
We have assisted Mexico in establishing naval bases on its rivers, security cordons north of its borders with Guatemala and Belize, and drone surveillance.
The United States has given $58.5 million in Mérida Initiative funding to Mexico to provide nonintrusive inspection equipment, mobile kiosks, canine teams, and vehicles, and training for more than 1,000 officials.
United States assistance also has helped Mexican agencies to build a secure communications network in the southern border area.
Since FY2018, America has provided more than $106 million to UNHCR to improve access to asylum in Mexico.
Mexico’s President López Obrador went along with the tough immigration policies of the Trump administration, such as the Remain in Mexico program, and he has expressed willingness to continue cooperating with the Biden administration.
For instance, Mexico has quietly flown roughly 13,000 undocumented migrants from northern cities to its southern border on about 100 flights, which complements American efforts to return migrants to Central America.
Solution
Biden should ask the Mexican government for permission to establish locations in Mexico for conducting expedited removal proceedings and to build facilities for the asylum seekers to live in during the proceedings — and subsequently if they are placed in the Remain in Mexico program. This would be a deterrent to illegal crossers using bogus persecution claims to gain entry and then disappear into the interior of our country; it also should reduce the number of illegal crossings.
The asylum seekers would derive important benefits from such a program too, such as safe housing facilities run by the American government.
Also, the detention requirement for expedited removal proceedings conducted in the United States would not apply, so conditions for the asylum seekers would be much less restrictive. Also Biden could permit the migrants to have legal assistance provided by American attorneys and non-attorney representatives in the Justice Department’s Recognition and Accreditation Program (R&A).
This wouldn’t solve all of the border problems Biden is having, but it would be a step in the right direction.
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 his blog at https://nolanrappaport.blogspot.com.