For all the talk about giving the president emergency authority to shut down the southern border, it actually ended up being the Senate bill’s least consequential provision when it was finally released on Sunday.
Not only does it not apply to unaccompanied minors, not only does it sunset after three years, not only does it not force President Joe Biden or Department of Homeland Security Secretary Alejandro Mayorkas to do anything, but it even empowers Biden to cancel a border emergency determination at any time for any reason.
It is, in other words, a lot of sound and fury signifying nothing. Nothing, that is, other than a legislative sleight of hand to make Washington look like it is fixing a problem when it is letting it continue or making it worse.
The most significant part of the legislation is the codification of the policy of the catch and release of illegal immigrants at the border. Biden is obliged under current law to detain all immigrants who illegally cross into the United States. He abuses his parole authority on a massive scale to ignore that obligation, releasing most immigrants after they are arrested.
The new legislation not only preserves Biden’s parole authority to release as many immigrants into the country as he desires, but it also creates a new legal authority for Biden, and all future presidents, to catch and release as many immigrants into the country as they want.
Specifically, the legislation creates a “noncustodial removal proceeding” that empowers Mayorkas to let any immigrant into the country for 90 days if he or she indicates “an intention to apply for a protection determination.” Once that request has been made, the immigrant is shunted into Immigration and Customs Enforcement’s “Alternative to Detention” program. This means, in plain English, that they are either given a cellphone to check in periodically with ICE or are fitted with an ankle bracelet.
Then, within 90 days of being released into the country, an immigrant must meet with an asylum officer for a “provisional protection determination” hearing. Amazingly, the legislation forbids these hearings from taking place at facilities managed by ICE or Border Patrol. If an immigrant is given a “positive protection determination” at this “provisional” hearing, he or she immediately gets a work permit for use until final asylum status is determined by another asylum officer.
Immigrants who receive a “negative protection determination” are not deported immediately or even taken into custody but are instead allowed to stay free and appeal the asylum officer’s decision. At no point are immigrants cross-examined by an adversarial attorney or evaluated by an impartial immigration judge. Asylum officers are notoriously lenient with granting asylum, much more than immigration judges who, under the Senate legislation, would no longer have any role to play in the asylum process.
The bill’s authors would have you believe that after immigrants have traveled thousands of miles and spent thousands of dollars to enter the United States illegally, they will voluntarily surrender to ICE for deportation. It is a fantasy. All immigrants released into the U.S. under the “noncustodial removal proceeding” will disappear into the country forever. Biden will not lift a finger to track them down. He certainly hasn’t so far. He is utterly untrustworthy on this.
