The situation along the southwestern border has long surpassed unsustainable or emergency levels and has ventured into uncharted, untenable waters. Looking back, the situation at the border that led to the five-week partial government shutdown now appears to be child's play.
What started out, around this time last year, as confusion over radical court rulings regarding prosecutions at the border and children being separated from parents has morphed into a full-scale invasion and the breakdown of our duly passed immigration laws.
Now is not the time for blame, half-truth, or half-measures. It's the time to decisively act! Nibbling around the edges on peripheral aspects of this issue might have worked to stem the greater tide a year ago, but the present situation calls for a complete shutoff at the border.
On Monday, the White House announced a new directive for the Department of Homeland Security and the attorney general to establish fees for asylum requests, to end work permits for those coming in at the border, and to establish regulations to adjudicate claims within 180 days. These measures are either vague, long overdue, and/or deal with the tangential aspects of the invasion and further accede to the premise that we can adjudicate our way out of this invasion.
The DHS not only releasing hundreds of thousands of aliens, but providing them with work permits was an egregious policy of the Obama administration and was never even promulgated in a formal regulation. It should never have been continued by this administration. Yet the Trump administration handed out 750,000 work permits to bogus asylum-seekers or those presumed to have a credible fear. And that was just through last September, before the large numbers began coming over.
Even now, the president is calling on DHS to "propose regulations" barring work permits rather than immediately terminating Obama's policy today. And while getting rid of this horrible policy is certainly a welcome move, it merely removes one gratuitous act of fanning the flames; it doesn't extinguish the flames by flatly denying all credible fear at the border, as is within the president's power.
Charging fees for applications could theoretically deter many of those migrants who lack any funds (after spending it all on cartel smugglers), but few of them are actually applying for asylum anyway and are still being released rather than returned or detained. Also, absent a directive to place all these people in expedited removal and dispose of their credible fear claims with a rocket docket in tent cities, it's unlikely enforcement personnel will deport those who simply lack the funds to pay the fee, although that point is still unclear.
As for adjudicating the cases within 180 days, again, the president is not required to adjudicate bogus claims. In fact, he has the full power to immediately turn them down at the border, and immigration law requires that any appeal be dispensed with ideally within 24 hours and at most within seven days. That is current law. A mix of empowering Border Patrol to immediately deny credible fear claims, the creation of tent cities and a rocket docket for appeals, use of expedited removal, and the discretion to rewrite Flores and implement the changes would solve this problem within seven days. Absent those reforms, nothing will change, and claimants won't be deported even within 180 days.
Nothing in this directive explicitly excludes these measures, and they might very well be a part of the plan, but the wording provides us with no new insight. It's possible the administration might be biding time to implement something more robust but didn't want anything definitive on paper so that the American Civil Liberties Union can't get a head start crafting lawsuits.
Either way, these are all debates about how to plow ahead with the asylum process in the long run. What we need is a complete shutoff of all immigration requests at our border, a power the president holds absolutely and unconditionally, in order to deal with the catastrophe now.
In addition, we need several backup plans both to enforce the shutoff and as alternatives if the administration chooses to abide by the inevitable illegal universal injunction from the next California judge.
Below are recommendations made within the framework of current statutes in the Immigration and Nationality Act to implement my ideas to deter, defend, and demagnetize.
No. 1: When Congress gave the president power (8 U.S.C. § 1182(f)) to shut off all or any form of immigration for any amount of time at will when he believes it's "detrimental to the interests of the United States," it certainly never envisioned anything near this obvious and severe. Between empowering our enemies in the cartels, flooding the country with drugs and gangs, creating strategic diversions, the public charge, the birthright citizenship, the diseases, the sex trafficking and stash houses, and the money-making for evil-doers, we have overshot the criterion of "detrimental" by a factor of one thousand. It's time for the president to immediately announce, in accordance with 8 U.S.C. § 1182(f), the closing of the country (southwestern border, northern border, both coasts, and interior ports of entry) to any and all aliens who do not already possess a U.S. immigrant or nonimmigrant visa (or who are from a Visa Waiver Program (VWP) country) and a passport, and who are not inadmissible per the section, as determined by CBP. This means no new defensive asylum applications will be accepted, as was the case with the Haitians in 1993 when the Supreme Court upheld this power in Sale v. Haitian Centers Council Inc.
No. 2: Advertise No. 1 on radio, in print ads, handbills, and billboards in the Northern Triangle. This is what the Obama administration did to shut down the flow of UACs from Central America in 2014.
No. 3: Return any alien entering illegally from a contiguous country to that country using the Alien Exit Transfer Program and those from non-contiguous ones to their country of origin. For aliens who return to the U.S. in violation of 8 U.S.C. § 1325(a) or 1326 or in the event of legal challenges to No. 1, return to 100 percent zero-tolerance prosecutions. Use military lawyers to prosecute these cases to free up Immigration and Customs Enforcement attorneys to represent the government in asylum and removal proceedings. To insure there are no 2018-style repeats of lost or misplaced children, perhaps assign family members shared alien registration numbers with a dash and suffix for children apprehended with an accompanying adult. Use hospital-style bands for both adults and children with their names and AR numbers on them during processing.
The DHS should work with the U.S. marshals to incarcerate adults geographically proximate to children for prompt reunification after criminal proceedings.
Consider turning over the confirmed children of aliens who engaged in dangerous behavior to amenable state Child Protective Services and reimbursing them for the costs of caring for those children. This will make it clear to the country that illegal alien criminals are certainly no better than American criminals whose children are brought into the custody of Child Protective Services.
No. 4: In preparation for a rocket docket and airlift deportation of the next group of Central Americans in the pipeline, the DHS and Department of Defense should establish tent cities right near Air Force bases along the southwest border and within easy transportation distance to the bases' flight lines. Examples include Goodfellow, Lackland, and Laughlin in Texas; Holloman and Kirtland in New Mexico; Luke and Davis-Monthan in Arizona; and as a last resort, anything in California. Provide tents for court proceedings, areas for consulting with counsel, sleeping, eating, medical care, and schooling for children, plus bath and toilet facilities.
No. 5: Detain aliens in accordance with 8 U.S.C. § 1222(a) for health screenings and observations. The Flores Settlement Agreement should not be seen as trumping the statute, and while the government obtained an exemption to the five-day release requirement to process family units per Flores v. Lynch, the agreement only specifies release must be to the "least restrictive setting." Additionally, defensive "asylum seekers" are, by their very nature, inadmissible aliens subject to expedited removal under 8 U.S.C. §§ 1182(a)(6)(C) for misrepresentation or (a)(7), lacking required immigration documents. They are also subject to mandatory detention per 8 U.S.C. § 1225(b)(1)(A)(i) and (b)(1)(B)(iii)(IV) respectively at a minimum, until such time as they've received a favorable credible fear determination.
Additionally, as the aliens are technically also inadmissible public charges per 8 U.S.C. § 1182(a)(4) and flight risks, they should remain detained through the duration of their proceedings, until either being granted asylum or removed from the U.S.
If for whatever reason release should be necessary, do not allow catch-and-release of any alien who has received a favorable credible fear determination who has not completed an I-589, Application for Asylum and Withholding of Removal, and assign them a court summons to the immigration court nearest to where they entered the U.S. illegally or the port of entry where they were deemed inadmissible. They should not be allowed to venture over to the interior court of their choosing.
No. 6: Prosecute false or misleading claims of fear, statements made relative to the asylum application, etc. per 18 U.S.C. § 1001. Also, inform all aliens that if their applications are found to be frivolous, they will be permanently barred from any relief from deportation, per 8 U.S.C. §1158(d)(6).
No. 7: Have the attorney general establish by regulations additional limitations and conditions, consistent with 8 U.S.C. § 1158(a)(2)(C), under which an alien shall be ineligible for asylum under paragraph (b)(1). That could include a regulation stating that anyone who uses criminal smuggling or cartel groups or caravans to come here is ineligible for asylum.
No. 8: Use already withheld foreign aid as a carrot to get Northern Triangle countries to agree to become each other's safe-third country as required by § 1158(a)(2)(A), e.g., Guatemala and Honduras for El Salvador; El Salvador and Honduras for Guatemala; and El Salvador and Guatemala for Honduras. In other words, promise to restore and possibly even increase aid if they agree to such an arrangement, which would instantly shut down any asylum claims. They could also get extra points for cooperating logistically with the air lifts.
The bottom line is that we need a plan to deter, defend, and demagnetize our porous border, and these are some of the statutes that can be used to prepare such a plan. Throwing more money at a "humanitarian crisis" to further treat, process, and incentivize this invasion with a supplemental funding bill is not the answer. Applying current law is the answer.