President Biden acknowledged that he cannot solely rely on executive power to secure the border. When asked if he had exhausted all possible efforts, he stated that negotiations with a bipartisan group of senators are necessary to effectively address the border crisis.
The negotiations led to the Senate Border Act of 2024 (Border Act), which, according to him, would be the most stringent and equitable set of reforms to ensure border security in our country. One key provision is the creation of a new emergency authority to close the border when it becomes overwhelmed, and he pledges to exercise this authority immediately upon signing the bill into law.
Related posts
According to Speaker of the House Mike Johnson (R-La.), Biden’s efforts to secure the border have been lackluster at best. In a bold claim, Johnson argues that since taking office, the Biden administration has systematically undermined America’s border security.
I also share Johnson’s skepticism regarding Biden’s intentions. It is clear that the border crisis was caused by his immigration policies, and the proposed Border Act negotiated by his team does not address or eliminate these problematic policies.
According to immigration expert Steven Camarota, the border crisis can be attributed to Biden. Since he assumed office, there has been a significant surge in illegal border crossings. This sudden increase can largely be attributed to Biden’s campaign promises of relaxing asylum standards, reducing enforcement, and implementing amnesty. These promises have created a reasonable expectation among undocumented migrants that they would be allowed entry at the southern border even without a visa.
Furthermore, Biden has successfully fulfilled the majority of his promises and has implemented initiatives to provide undocumented migrants with alternative pathways to entry into the country, bypassing the traditional visa system.
During the first three years of the Biden presidency, his administration has allowed over 2.3 million migrants to enter the country without visas using the “catch and release” approach. It is worth noting that this number would have been even higher if the administration hadn’t expelled 2.5 million migrants due to the pandemic-era Title 42 order.
Biden has the authority to end catch and release without relying on the Border Act. In fact, it is within his policy to do so. He can simply issue an executive order instructing the relevant agency heads to cease this practice.
The Border Act would actually allow him to release as many as 5,000 individuals who have crossed the border illegally on a daily basis.
The provision in question grants Biden the power to close the border, but it does not mandate him to take action unless the number of illegal border crossings exceeds an average of 5,000 per day. To put this into perspective, that would equate to nearly 2 million illegal crossings in a year.
Furthermore, the Border Act lacks provisions to prevent him from disregarding the requirement to shut down, just as he has disregarded the statutory immigration enforcement provisions. Additionally, it would not put an end to the “legal pathways” that his administration has established to allow migrants entry into the country without visas. These pathways encompass various special processes, such as paroling up to 30,000 migrants monthly from Cuba, Haiti, Nicaragua, and Venezuela, as well as the Family Reunification Parole Process for nationals from other countries.
The Border Act will not put an end to the administration’s CBP One mobile application program. This program allows visa-less migrants to book inspections at a port of entry on the southwest border. As of August 2023, approximately 250,000 migrants have undergone inspections, with 99.7 percent of them being granted entry into the country. Additionally, the CBP One program has been utilized by the administration to transport 320,000 inadmissible immigrants from foreign countries to American airports.
The Border Act, in its final form, would not necessitate the administration to actively enforce immigration laws against undocumented migrants who have already made it into the interior of the country. According to the DHS Guidelines for the Enforcement of Civil Immigration Law, enforcement actions are restricted to deportable migrants who are deemed to be a threat to national security, public safety, and border security, thereby endangering the well-being of the United States. Consequently, if these individuals have simply violated our laws by crossing the border illegally and are subsequently released into the country’s interior, they are protected from enforcement proceedings.
In any case, it is highly unlikely that they will be deported. In fiscal 2023, there were a total of 1,292,830 migrants who were subject to final deportation orders, but only 142,580 of them were actually removed by ICE.
When millions of migrants claiming asylum flooded into the country, the immigration court faced a crisis due to the overwhelming backlog. At the start of Biden’s presidency, the court had a backlog of 1,290,766 cases, which has now ballooned to 3,524,051 cases. On average, individual immigration judges have over 4,500 pending cases, and the wait time for a hearing is 4.3 years.
The administration is failing to make headway in clearing the backlog. By the end of March in fiscal year 2024, the immigration court had received 1,155,024 new cases, while only managing to close 434,996. At this pace, the court would need nearly three times the number of judges just to handle the influx of new cases.
According to the Migration Policy Institute, our broken asylum system is characterized by lengthy backlogs and low chances of successful returns. This combination of factors serves as a catalyst for the migration influx at the U.S.-Mexico border, posing significant challenges to the integrity of the asylum and immigration adjudicative systems, as well as overall immigration enforcement.
Suspending the admission of asylum seekers could be a necessary measure to allow the immigration court to catch up. This action can be taken by President Biden, utilizing the authority given to presidents in INA Section 212(f) by Congress.
In the landmark case of Trump v. Hawaii, the Supreme Court emphasized the significant power vested in the President by section 212(f). The Court recognized that this provision grants the President the authority to make crucial decisions regarding the suspension of entry, including the discretion to determine when and whom to suspend, the duration of the suspension, and the conditions thereof. The only requirement is that the President must determine that the entry of the specified aliens would pose a detriment to the interests of the United States.
Furthermore, there is no justification for deviating from the clear text of section 212(f), as neither the legislative history nor historical practice support such a departure.
We require legislation for immigration reform, but having Biden’s team lead the negotiations won’t result in the necessary legislation to secure the border. This situation is akin to putting the fox in charge of guarding the hen house.
Nolan Rappaport served as an Executive Branch Immigration Law Expert for the House Judiciary Committee for three years. After that, he worked as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Before his time on the Judiciary Committee, Rappaport spent 20 years writing decisions for the Board of Immigration Appeals. To stay updated with his work, you can follow him on his blog at https://nolanhillop-eds.blogspot.com.
If you want to stay updated with the latest news, weather updates, sports highlights, and streaming videos, make sure to visit The Hill.
