Donald Trump will terminate President Biden’s open borders policies on his first day back in office, restoring the full set of his first term’s strong border policies.
This will include ending “catch and release.”
Between the beginning of the Biden presidency in January 2021 and the end of September 2023, the Border Patrol released around 3.3 million illegal border crossers into the country. And that number would have been much larger if millions of illegal crossers had not been expelled pursuant to the Title 42 pandemic order.
In Florida vs. USA, a federal judge found that Biden “has turned the Southwest Border into a meaningless line in the sand and little more than a speedbump for aliens flooding into the country by prioritizing ‘alternatives to detention’ over actual detention.”
Biden claims that he had to release illegal crossers because he didn’t have sufficient detention capacity, but that excuse is contradicted by the fact that he requested a reduction in funding for detention space for fiscal 2022, and a further reduction for fiscal 2023.
Like it or not, detention is necessary.
Among the 231,095 removal orders issued by immigration judges in fiscal 2023, 159,379 (69 percent) were issued in absentia because the migrants had failed to appear for their hearings.
Many migrants fail to appear for the execution of their deportation orders too. There were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and Immigration and Customs Enforcement was only able to deport 142,580 (11 percent) of them.
If elected, Trump will have to find a way to detain migrants who are flight risks, which may be most of them. They took a long, dangerous and expensive journey to come here. It is unrealistic to expect them to leave if they don’t have to.
Given Biden’s reductions in detention facilities, Trump may have to resort to detaining them at military bases. But meeting the needs of detained migrants doesn’t depend on where their detention facilities are located; it depends on how they are treated in the facilities.
Trump says he will resume his “Remain in Mexico” program. During his presidency, more than 65,000 non-Mexican asylum seekers were sent back to Mexico where they waited for months – and sometimes years – to appear at an asylum hearing. Asylum seekers in this program faced risks of kidnapping, extortion, rape and other abuses in Mexico. Trump will have to find ways to protect asylum seekers waiting across the border and make sure they are taken care of properly.
Trump wants to finish his border wall project. He was only able to construct about 500 miles of border wall during his presidency. However, he does not intend to build a wall across the entire length of the 1,954-mile-long U.S.-Mexico border, because much of the border is protected already by natural barriers, such as mountains and water.
He will establish a record-setting deportation operation to remove the millions of undocumented migrants who came here during the Biden presidency. This shouldn’t be hard to do — if he can find the migrants. Most of them were paroled into the country pursuant to INA section 1182(d)(5), which permits the secretary of the Homeland Security Department to terminate their parole status.
Parole is not regarded as an admission into the United States. When parole status is terminated, the paroled migrant’s case will “be dealt with in the same manner as that of any other applicant for admission to the United States.” In other words, the migrant’s presence in the United States will no longer be regarded as lawful. Trump will just have to screen them to determine which ones have legitimate persecution claims that would entitle them to asylum hearings.
Trump will terminate Biden’s legal pathways and the CBP One app. Biden bypassed America’s visa system with these programs to be able to admit hundreds of thousands of migrants without visas. He also intends to use the Alien Enemies Act to deport gang members, drug dealers and cartel members by claiming that Mexico is a “cartel government.”
More than two centuries’ worth of case law cast doubt on whether the courts would reject such a claim. According to Brennan Center counsel Katherine Yon Ebright, “By using the Alien Enemies Act, a law enacted pursuant to Congress’s constitutional war powers, Trump could conduct the deportations summarily, without any of the hearings or other process typically accorded to non-citizens in peacetime and under immigration law.”
Moreover, there is no procedure for appealing a president’s decision to deport a migrant under this law. The courts generally have limited their review to underlying jurisdictional fact — i.e., whether the individual is an “enemy” under the relevant definition.
Trump would just have to issue a proclamation finding that an invasion or predatory incursion is being perpetrated by a foreign government. The courts have avoided challenges to such findings by holding that the presence or absence of an invasion is a nonjusticiable “political question.”
President Franklin D. Roosevelt used the Alien Enemies Act in 1940 to put 70,000 Japanese American citizens into internment camps shortly after the Japanese bombed Pearl Harbor.
Biden limited immigration enforcement measures to deportable immigrants who pose a threat to national security, public safety or border security. This means that illegal border crossers who reach the interior of the country are home free unless they pose such a threat, which is a magnet to illegal border crossings. When migrants know that they will be safe from deportation once they have reached the interior of the country, they will keep trying until they succeed in reaching it.
Trump will enforce the immigration laws against all violators. In one of his executive orders, he said, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.”
Trump’s plan should be a great success if he is right that Biden’s policies caused the tsunami of illegal border crossings that started when he began his presidency. I think he is.
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://nolanhillop-eds.blogspot.com.
