Ineffective and Problematic Senate Border Bill Rises from the Dead

The Washington Times has reported that Senate Majority Leader Chuck Schumer (D-N.Y.) plans to bring an ineffective and problematic border bill — negotiated in secret by Sens. James Lankford (R-Okla.), Krysten Sinema (I-Ariz.), and Chris Murphy (D-Conn.) with the assistance of DHS Secretary Alejandro Mayorkas in the late fall and early winter — to the floor for a vote. That bill looked dead on arrival shortly after it was unveiled, and no one thinks it’s going to pass the Senate this time, so Schumer’s plan is really more a political stunt to shift blame for the border catastrophe to the GOP than a legislative strategy. If they hope to fix the border, the GOP and security-minded Democrats should have a better response than the first time this proposal saw the light of day.

Chaos at the Border. This bill is only an issue because the border has been in a state of chaos since shortly after President Biden took office in January 2021.

In the 14 fiscal years prior to FY 2021, apprehensions at the Southwest border never exceeded 860,000 and topped 800,000 just twice — in FY 2007 (858,638) and in FY 2019 (851,508).

In response to that latter border surge, then-President Trump implemented a number of policies to deter illegal migrants by denying them the ability to live and work in the United States while their removal hearings were proceeding, most famously (and successfully) the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

Biden reversed nearly all of those Trump-era border policies directly after taking office, and in a break with every one of his predecessors, abandoned deterrence as a border strategy, instead inviting almost any foreign national who could make it to this country to remain at large here while applying for asylum.

CDC orders directing the expulsion of migrants, issued under Title 42 of the U.S. Code, were the sole Trump-era border-related initiatives Biden retained, though the administration ended those expulsion orders in May 2023 after fighting efforts by certain states to keep them in place for over a year.

Consequently, illegal entries have soared in the last 39 months, with apprehensions nearing 1.66 million at the Southwest border in FY 2021 and exceeding two million in FY 2022 (2.2 million-plus) and FY 2023 (2.045 million).

In a 2023 order barring the administration from releasing illegal border migrants on “parole” (with access to work authorization), federal Judge T. Kent Wetherell rejected the administration’s argument that “geopolitical factors” — “climate change”, corruption, violence, poverty, etc. — have been driving this border surge.

He explained, instead, that the surge is happening because administration officials have:

effectively incentivized what they call “irregular migration” that has been ongoing since early 2021 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.

Current Border Detention Mandates, Expedited Removal, and Credible Fear. Each of those border migrant releases — and there have been around 3.6 million of them since Biden took office — violates section 235(b) of the Immigration and Nationality Act (INA), which in three separate instances mandates the detention of inadmissible “applicants for admission”, including aliens barred from admission at the ports and illegal aliens between them.

That INA provision offers CBP two options for handling certain classes of those inadmissible aliens. The agency can choose to subject aliens barred from admission because they either lack proper entry documents or offer fraudulent documents to “expedited removal”, a tool Congress gave officers in 1996 to quickly deport aliens with no right to enter.

Alternatively, CBP can opt to place those aliens and aliens inadmissible on all other grounds into “regular” removal proceedings before immigration judges (IJs).

Expedited removal, however, comes with a “catch”, which requires CBP officers at the ports and Border Patrol agents to refer aliens subject to that truncated process who request asylum of express a fear of harm if returned over to asylum officers (AOs) at USCIS, for what is known as a “credible fear” interview.

The “credible fear” standard is low, defined by statute as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.

https://cis.org/Arthur/Ineffective-and-Problematic-Senate-Border-Bill-Rises-Dead

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