President Biden claims that the Senate Border Act of 2024 was “the toughest and fairest set of reforms to secure the border we’ve ever had in our country.”
Republicans claim that the Border Act would make the border crisis worse by encouraging even more migrants to make illegal border crossings. Trump says that “only a fool, or a radical left Democrat, would vote for this horrendous legislation.”
Biden’s response is that the “Republicans have to decide. Do they want to solve the problem? Or do they want to keep playing politics with the border?”
The Border Act was part of a $118 billion national security supplemental package. A motion to proceed with the Border Act in the package failed by a vote of 49-50. The package went forward without it.
The Border Act isn’t all dead. Vice President Kamala Harris will certainly bring it back if she prevails in the upcoming election and is our next president. She says it is “the most significant border bill in decades.” She claims that the Border Act “was all set to pass, but at the last minute, Trump directed his allies in the Senate to vote it down.”
But the conservatives are right about this bill. The Border Act would not stop the administration from continuing to create questionable parole programs to admit migrants who don’t have visas or other valid entry documents. It would not end catch and release. It would not stop migrants from using meritless asylum claims to enter and remain in the United States indefinitely.
As U.S. District Court Judge T. Kent Wetherell said in a 2023 immigration case, the Biden-Harris administration’s actions have been “akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border.”
The Border Act does provide the president with authority to close the border down when illegal crossings between ports of entry reach an average of 4,000 per day for more than seven days. This is not mandatory, however, unless the average rises above 5,000 per day for more than seven days, which would be more than 1.8 million per year. And even that provision would sunset in three years. That is not a resolution of the issue.
Moreover, while an order to shut the border down is in effect, Customs and Border Patrol would be required to interview a minimum of 1,400 inadmissible migrants per day at ports of entry along the Southwest border. These interviews have resulted in releasing migrants without visas or other valid entry documents into the country 95.8 percent of the time.
The Border Act also would authorize asylum officers to adjudicate asylum applications at the border in non-custodial, non-adversarial, proceedings. Migrants who receive a positive decision in the initial screening process would be eligible for work authorizations and be referred to a protection merits interview for a decision on their applications. However, if they establish eligibility by clear and convincing evidence, the asylum officer could grant their asylum applications right there during the screening interview.
Denials, on the other hand could be appealed to a Protection Appellate Board.
This system would be used to gain quick entry with work authorization, and it would facilitate more meritless asylum claims. Unlike asylum hearings before an immigration judge, the government would not be permitted to cross-examine the asylum-seeker to probe the veracity of his claims or to ensure that the asylum officer understands the statutory provisions he has to apply.
This is a lot to expect from asylum officers. Law professor Stephen Yale-Loehr has observed that “immigration law has been called the second most complex area — second only to tax law.”
At best, the new asylum process would slow down the rate at which the immigration court backlog grows. The backlog has been accelerating at a breakneck pace since the start of the Biden administration, from 1.3 million cases to 3.7 million cases now.
The average wait for an initial master calendar hearing for pleadings and to schedule an individual hearing on the merits of a case is four years. Merits hearings are being scheduled more than five years in advance. The total wait for a merits hearing can be up to 10 years.
Moreover, progress isn’t being made on reducing the backlog. As of June, the immigration court had completed 676,616 cases in fiscal 2024. At that rate, it would take more than five years to clear the backlog even if the court did not receive any more new cases.
If more asylum officers are going to be hired, they should be used by Citizenship and Immigration Services to adjudicate affirmative applications instead of being sent to the border to adjudicate defensive applications. An asylum application is considered affirmative if the applicant isn’t submitting it in removal proceedings.
In January 2018, Citizenship and Immigration Services announced that it was facing a crisis-level backlog of affirmative asylum cases, with more than 311,000 pending applications. It rose to more than 1 million applications by the end of fiscal 2023. A CIS ombudsman has estimated that the time required for processing that many asylum applications is likely to approach a decade.
According to Elizabeth Jacobs, “these extreme backlogs are not only eroding the credibility of the immigration system, but also encouraging additional illegal immigration to the United States. This is because long backlogs ensure that even those aliens who meet the Biden administration’s narrow enforcement priorities or do not have legitimate asylum claims are nevertheless provided an opportunity to live in the United States for numerous years.”
The immigration court backlog and the administration’s enforcement guidelines combine to make the deportation of illegal crossers who reach the interior of the country extremely unlikely, and it isn’t possible to stop illegal crossings when the crossers know that they will be safe from deportation once they have reached the interior of the country.
Illegal border crossings have reached the highest level in the agency’s 100-year history, averaging 2 million per year.
ICE only removed 59,011 deportable migrants in fiscal 2021; 72,177 in fiscal 2022; and 142,580 in fiscal 2023; which totaled 273,768.
Notwithstanding this dismal enforcement record, the Border Act would provide billions in funding to give agencies more money to facilitate processing and releasing even more undocumented migrants into the country.
The takeaway is that this bill would just perpetuate the “let as many undocumented migrants as possible into the country” measures that caused the border crisis.
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.
