Republicans on the Senate Judiciary Committee recently unveiled a proposal to fix the Biden administration’s policies that they claim are causing the crisis at the southern border, prioritizing instead the reforms they think are most critical to stemming the flow of illegal crossers now.
Their proposal ignores what is happening in the interior of the country, just focusing on what is happening at the border. This will not stem the flow of illegal crossers, however. It is the administration’s lax interior enforcement policy that is attracting the record-breaking number of illegal crossers.
The administration is prohibiting enforcement measures against deportable migrants in the interior of the country unless they pose a threat to national security, public safety or border security. Consequently, illegal crossers have little, if any, risk of being deported once they have reached the interior of the country, which encourages them to keep trying until they succeed in reaching the interior.
Let’s go over some highlights from the proposal.
ASYLUM
Safe third country. Make migrants ineligible for asylum if they have transited through at least one country outside their home country unless they can show that they sought and were denied protection in each such safe third country.
This won’t prevent migrants from using a bogus persecution claim to get into the country.
The United States is a party to the 1951 Convention and its 1967 Protocol, which has a refoulment provision that prohibits parties from returning a refugee to a country where he would face persecution. The United States meets this obligation with a mandatory withholding of removal provision that prohibits deporting a migrant to a country where it is more likely than not that he will be persecuted but permits deportation to any other country that will take him.
This prohibits the administration from summarily removing a migrant who asserts a persecution claim even if he is ineligible for asylum under the safe third country rule. His persecution claim would have to be evaluated to determine whether he is entitled to withholding of removal.
This takes time, especially when the border patrol is overwhelmed by illegal crossers. And the Border Patrol can hold illegal crossers for only 72 hours before transferring them to ICE, which detains only around 35,000 migrants. Consequently, many of them would be released to wait for a determination on whether they are entitled to withholding, which would give them an opportunity to disappear into the interior of the country.
Eligibility. Raises the asylum “credible fear” screening standard from “significant possibility” to “more likely than not,” which would weed out non-meritorious persecution claims earlier in the asylum process.
This may reduce the number of new cases the immigration court has to adjudicate, but it will not end the backlog crisis that the administration has created by letting a tsunami of asylum seekers into the country.
The immigration court has a backlog of 2,794,629 cases, and the administration is not making any progress on reducing it. The court received 1,488,110 new cases in fiscal 2023, and completed only 669,011. This doesn’t just result in very long waits for an asylum hearing — it also makes it difficult to get removal proceedings for deportable migrants.
Even if the size of the immigration court were to be increased from the 600 judges it has now to 1,349 judges, it would still take 10 years to clear the backlog.
Frankly, I don’t think it is possible to end this crisis.
Port of entry. Limit asylum seekers to making their request at a port of entry.
From January 2023 through the end of September, CBP used the CBP One program to interview nearly 278,000 migrants at a port of entry.
It takes an average of 90 days to get a CBP One interview. As of July, there were 104,000 migrants waiting in Mexico for an interview; the wait would get much longer if port of entry interviews became the only way to pursue an asylum application at the border.
Migrants who can’t or don’t want to wait will have to resort to making an illegal crossing. In fact, the Border Patrol apprehended 188,778 migrants in October who chose to make an illegal crossing instead of waiting for a CBP One interview.
MISCELLENEOUS
Border security. Construct border walls between ports of entry.
This is a long-term project, not a crisis solution. It won’t stem the flow of illegal crossers now. A construction expert estimated that the previous administration would have needed at least 10 years to achieve its limited objective of just putting walls where they were needed.
Parole. Prohibit the administration from using broad class-based criteria to grant parole, and clarify that parole is to be used rarely.
The administration tried to reduce illegal crossings with a carrot-and-stick strategy that combines an expansion of parole programs with adverse consequences for those who still choose to make an illegal entry. It didn’t work. Illegal crossings dropped initially and then returned to previous levels.
Prohibiting this use of parole would eliminate these parole programs, but that doesn’t mean that the migrants who are depending on them won’t come anyway. It just means they would have to resort to making an illegal crossing.
Return to a contiguous country. Return migrants to Mexico during their immigration proceedings if they can’t be detained or removed to a safe third country.
Human Rights Watch has reported that this program exposes migrants to the risk of being kidnapped, raped or subjected to extortion and other abuses in Mexico.
In addition, the administration can’t have migrants wait in Mexico for their immigration proceedings without the approval of the Mexican government, and the Mexican government has indicated that it doesn’t want migrants waiting in Mexico for immigration proceedings in the United States.
Family unification. Require DHS to keep families together in custody while criminal charges for illegally crossing the border are pending.
This would facilitate the prosecution of parents in migrant families for illegal crossings, but the administration has not shown much willingness to prosecute immigration crimes. According to TRAC Immigration, the fiscal 2023 immigration prosecutions were down 72.1 percent compared to five years ago.
The Republicans need a better plan. This one is inadequate and likely just to increase the number of illegal crossings.
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://nolanrappaport.blogspot.com
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