Freedom

Opinion by Conn Carroll 

Did the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, legislation explicitly enacted with the purpose of reducing a president’s power to let illegal immigrants into the country, actually empower presidents to do the opposite — to let in infinite numbers of illegal immigrants?

It’s a ridiculous question, but it is exactly what the Biden administration argued in federal court in defense of President Joe Biden’s use of parole to let in over a million illegal immigrants into the United States since he was sworn into office.

This week, a federal court ruled that Biden’s immigration parole program is illegal, which is going to create huge headaches for Biden as his entire post-Title 42 immigration plan rests on that expansive view of the parole power.

If you are at all interested in the border crisis, you should read the entire court’s opinion, which is here. The “Findings of Fact” section is particularly helpful and includes the following highlights.

The court starts off by noting that the border was completely secure both before the pandemic began and then also when Biden was sworn into office. Then as soon as Biden became president, everything went to hell:

The data shows that in the three months before the COVID-19 pandemic (January through March 2020), about 25,000 aliens per month were being apprehended at the Southwest Border. The monthly apprehensions dropped significantly (to less than 1,200) in April 2020 because of the pandemic and the Title 42 Order, and they remained at relatively low levels through January 2021. Apprehensions returned to their pre-pandemic levels in February 2021 and increased dramatically thereafter. By July 2021, monthly apprehensions reached 100,000, and for the most part, they have stayed at or above that level since then.

The court also details the specific changes Biden made to immigration policy that encouraged migrants to cross the southern border illegally, including the termination of the successful “Remain in Mexico” policy and the issuance of the “Pekoske Memo” that effectively instructed Border Patrol to let more migrant families arrested after illegally crossing the southern border into the country:

Although DHS claimed that it took these steps to address the increase in single adults that were being encountered at the border, the practical effect of closing the family detention facilities was to guarantee that family units arriving at the border would have to be released into the country rather than being detained. This, in turn, contributed to the overcrowding of CBP facilities as family unit encounters increased during the first six months of the Biden Administration — from just over 7,000 in January 2021 to nearly 83,000 in July 2021.

Border Patrol Chief Raul Ortiz even testified that Biden’s new catch-and-release policies caused the subsequent border surge:

Indeed, USBP Chief Ortiz credibly testified based on his experience that there have been increases in migration “when there are no consequences” and migrant populations believe they will be released into the country.

…

It is particularly noteworthy that USBP Chief Ortiz testified that the current surge differs from prior surges that he seen over his lengthy career in that most of the aliens now being encountered at the Southwest Border are turning themselves in to USBP officers rather than trying to escape the officers. It is reasonable to infer (and just plain common sense) that aliens are doing this because they are aware that they will be expeditiously processed and released into the country. Indeed, on this point, Chief Ortiz credibly opined based on his experience that the aliens are likely “turning themselves in because they think they’re going to be released.”

The court then explains how the surge of migrants caused by Biden’s catch-and-release policies quickly overwhelmed Border Patrol’s ability to process illegal immigrants into the country. As we editorialized before, the Government Accountability Office has documented how the Biden administration went from spending two hours processing each immigrating family at the border, ending with a Notice to Appear in court, to spending just 30 minutes processing each migrant, ending with a Notice to Report to an Immigration and Customs Enforcement office in the city where he or she wanted to live.

This was then replaced with Biden’s illegal parole program, which only requires a 15-minute interview from a Border Patrol agent before an illegal immigrant is released into the country. Under the parole program, immigrants are given an alien registration number, but they are not given a Notice to Appear document, which also serves as the beginning of the deportation process. Regional ICE offices are then supposed to process the illegal immigrants and issue their Notice to Appear documents.

But the regional ICE offices are not designed to process the hundreds of thousands of immigrants Biden is releasing into the country. This is a made-up illegal program. Of course, the rest of the system isn’t designed to handle Biden’s illegal actions. As a result, ICE officials estimate that if the Biden administration’s illegal parole program had been halted in November 2022 and no more immigrants had been paroled into the country, it would take three years just to clear the existing backlog of unprocessed migrants.

And once a migrant is issued a Notice to Appear by an ICE office, that is just the beginning of the deportation process, during which time immigrants will assert asylum as a defense against deportation. The actual asylum determination will take another five years, and most immigrants lose their cases or stop showing up to court.

Importantly the court notes that since Border Patrol officers only have 15 minutes to process each family, they have no time to determine whether or not a migrant has a criminal history in their home country. They can check U.S. databases to see if they have a criminal history in the U.S., but a criminal who has never been to the U.S. would have no such record.

The Biden administration argued in court that because of a lack of funding from Congress, it does not have the space to detain all the migrants illegally crossing the southern border. But the court found this unpersuasive for two reasons.

First, as noted above, Biden’s own catch-and-release policies are the cause of the migrant surge. Second, ever since Biden became president, he has actively sought to reduce detention capacity. The court then quips:

Thus, like a child who kills his parents and then seeks pity for being an orphan, it is hard to take Defendants’ claim that they had to release more aliens into the country because of limited detention capacity seriously when they have elected not to use one of the tools provided by Congress in §1225(b)(2)(C) and they have continued to ask for less detention capacity in furtherance of their prioritization of “alternatives to detention” over actual detention.

Moving to the text of the parole statute in question, among other findings, the court notes that the statute requires the government “to be returned to the custody from which he was paroled” after the purpose of the parole was dealt with.

What this means is that the parole statute created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was designed for situations in which an immigrant arrested after illegally crossing the southern border could be paroled into the U.S. so he or she could seek medical care at a hospital, but that after the medical emergency was over, he or she was to be returned to the custody of the government.

That is not what Biden is doing at all. He is releasing immigrants on parole into the U.S. so they can report to regional ICE offices to receive Notices to Appear, but then he has no plan of detaining them at that point. Instead, his program just releases everyone into the U.S. with no plan to return them to custody at all.

Looking at the intent behind the 1996 change, the court notes:

The Court fails to understand how the fact that Congress apparently rejected more narrow language so DHS had “flexibility to deal with compelling immigration situations” justifies the creation of an entirely new processing pathway that has led to the mass release of aliens in the country with minimal processing merely for sake of administrative expediency.

Exactly. When Congress narrowed the parole power in 1996, it did not intend to create a brand new immigration program that gives the president the power to admit infinite numbers of illegal immigrants into the U.S.

But that is exactly what Biden had his team argue in court, and it is exactly what he is doing on the southern border.