Biden's Backward Immigration Policies

KEY TAKEAWAYS

• President Biden’s immigration policies have created a crisis of historic proportions at our southern border, and his administration is taking steps that will make it even worse.
• The administration is ignoring the law and making it harder for border and immigration authorities do their jobs.
• Democrats in Congress are pushing mass amnesty in their reckless tax and spending bill, which will draw more migrants to the border.

The response by the Biden administration and congressional Democrats to their border crisis is adding fuel to the fire. Pursuing payments to illegal immigrants who were detained for breaking the law, circumventing immigration statutes, hamstringing the men and women who are protecting our border, and pushing for amnesty will only make the Biden border crisis worse. For the fiscal year that ended in September, U.S. Customs and Border Protection reported a record 1.7 million encounters with people trying to cross the border illegally.

Payments to Illegal Immigrants v. Others

Payments to Illegal Immigrants

The Wall Street Journal recently reported that the Biden administration is in talks to offer illegal immigrant families that were subject to the zero-tolerance enforcement policy during the Trump administration around $450,000 a person in compensation. The payments could total close to $1 million per family.

When asked about this, President Biden called the reporting “garbage,” only to have the American Civil Liberties Union issue a statement saying that “President Biden may not have been fully briefed” about his own Justice Department’s actions in this case. The following day, a White House press secretary reversed course and said that the president is actually “perfectly comfortable” with the payments. In comparison to the $450,000 proposed payout for illegal border crossers, the U.S. government pays $100,000 to the families of soldiers killed in service to the country under the Department of Defense’s death gratuity program. People who are wrongly incarcerated in federal prison for one year are eligible for $50,000.

Failure to Enforce the Law

When CBP apprehends someone at the border who does not have proper entry documentation, that person can be placed in “expedited removal” proceedings and quickly removed from the United States without formal immigration proceedings. If they indicate an intent to apply for asylum or that they fear persecution in their home country, they are referred to a United States Citizenship and Immigration Services asylum officer for a “credible fear” interview to assess the validity of their claims. If they then get a positive credible fear determination, they are generally released into the United States on parole with a “notice to appear.” This document, similar to a criminal indictment, signals the beginning of formal immigration proceedings to either grant asylum or remove them from the country. The notice to appear includes information about the charges, legal authority, rights under the law, and the location and timing of the proceedings, which are all detailed in the Immigration and Nationality Act.

Section 235 of the INA requires that aliens in expedited removal proceedings who are claiming asylum be detained by the Department of Homeland Security until they either receive asylum or are removed from the United States. For aliens who get a positive credible fear determination, the law says, “the alien shall be detained for further consideration of the application for asylum.” Until December 2009, DHS abided by the detention requirement. Then the Obama administration issued a policy directive asserting that, after receiving a positive credible fear determination, aliens should be released into the United States – under DHS’ parole authority in Section 212 of the INA – until the their proceedings in immigration court. This practice is often referred to as “catch and release.”

The “credible fear” standard set by the INA is low, and the vast majority of aliens who claim fear of persecution receive a positive determination. Between fiscal year 2008 and FY 2019, it was approximately 81%. But the standard to actually receive asylum is higher than the credible fear standard. According to Department of Justice, over the same time period only 17% of aliens who got a positive credible fear determination ultimately received asylum. The combination of catch and release policies and the low credible fear standard is one of the main drivers of the massive spike in asylum claims at the southern border over the last decade.

The Trump administration took a series of steps, including the Migrant Protection Protocols known as the “Remain in Mexico” policy, to stem the flow of illegal immigrants with frivolous asylum claims. Since taking office, the Biden administration has worked to quickly roll back most of those policies.

Earlier this year, the Biden administration also invented a new “notice to report” process that is not found anywhere in the INA Unlike a notice to appear, the new notice does not initiate the formal immigration removal process. Instead, the alien is simply released into the United States with instructions to report to their local Immigration and Customs Enforcement office within 60 days. Their case won’t even begin to be processed until that meeting happens, and only then would they receive an official notice to appear. Senators James Lankford, John Cornyn, and others have expressed concern that this process does not comply with the law. In August, they asked the Government Accountability Office to look into the administration’s actions.

The administration also is ensuring that it is harder for ICE and CBP to do their jobs. The secretary of homeland security issued a directive in September that severely restricted the categories of illegal immigrants ICE agents are allowed to apprehend and remove from the United States. Another order, in late October, dramatically expanded the types of areas in which ICE and CBP agents are barred from carrying out immigration enforcement actions. As a result of actions like these, FY 2021 had the lowest number of immigration arrests in more than a decade. According to the Washington Post, “Officers working for ICE’s Enforcement and Removal Operations made about 72,000 administrative arrests during the fiscal year that ended in September … down from 104,000 during fiscal 2020 and an average of 148,000 annually from 2017 through 2019.”

Amnesty in the Reckless Tax and Spend Spree

Dissatisfied with the administration’s efforts to reward violations of immigration law, Democrats in Congress are pushing to rewrite immigration law in their reckless tax and spend spree. The House version of this legislation includes provisions to provide mass parole until September 30, 2031, to millions of illegal immigrants who arrived in the United States prior to January 1, 2011. It would also provide them with work and travel authorization and make them eligible for a REAL ID. This would allow millions of illegal immigrants to live and work in the United States without fear of deportation despite violating our immigration laws. The INA makes people who are paroled into the United States eligible to adjust to lawful permanent resident status – and to pursue citizenship – under certain circumstances. For example, illegal immigrants who receive parole under the Democrats’ reconciliation proposal and are married to a U.S. citizen or are the parent of an adult U.S. citizen would immediately be eligible to adjust to lawful permanent resident status.