Investigation should reveal Biden’s fast-track program for illegal aliens violates federal law

February 4, 2022
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Last month, over 100 lawmakers, sent a letter to the Inspector General for the Department of Homeland Security, urging him to perform a comprehensive review of the immigration policies implemented by the Biden Administration.  In the letter, the lawmakers assert that the Biden Administration implemented the policies despite being warned that a rapid implementation would lead to a surge of illegal aliens crossing the Southwest border and that the Administration failed to prepare for it. 

Among the policies the lawmakers want the Inspector General to review are the Biden Administration’s “notice to report” and parole programs.  The letter specifically requests that the IG report on:

  • The number of illegal aliens the Border Patrol and Office of Field Operations released directly into the United States following apprehension and processing (i.e. without transfer to another government agency);
  • The authority under which they were released into the U.S.;
  • The number of aliens provided notices to appear, notices to report, and parole; and
  • The number of aliens enrolled in the alternatives to detention program (ATD) prior to release.

The search for answers follows the outright implosion of immigration enforcement during President Biden’s first year in office.  His presidency began with a rush to repeal Trump-era policies without regard to the outcome.  Indeed, high-ranking officials from the Trump administration warned Biden’s aides throughout the transition that repealing the policies could lead to a major surge in illegal immigration.  (See NPR, March 23, 2021)  Nevertheless, once in power, the Biden Administration quickly rescinded the Remain in Mexico policy, rescinded international immigration agreements with Central American countries, ended Title 42 expulsions of children and families, attempted to impose a 100-day moratorium on deportations, and severely limited the ability of Immigration and Customs Enforcement agents to arrest and deport illegal aliens already in the U.S.

It did not take long before the monthly total of illegal aliens encountered at the southern border soared.  Between January and July 2021, the number of encounters nearly tripled, dwarfing previous surges at the border.  In only a matter of weeks, the Border Patrol became overwhelmed.  Front line agents could not process the aliens quickly enough and stations grew dangerously overcrowded.  The situation, well documented by media outlets, was so dire that one major Border Patrol facility at the southern border was 700 percent over capacity.  (See, e.g., CBS News, March 12, 2021; New York Post, March 21, 2021; ABC News, March 24, 2021)

 

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Data obtained from Customs and Border Protection.

According to former officials, agents began to fear for their safety as they were overwhelmingly outnumbered by illegal aliens, both in the field and at stations, and among them could include dangerous criminals, drug traffickers, and cartel members.  The Border Patrol had no resources to expand holding space (for example, by acquiring soft-sided facilities) or increase the use of agents, as it had already used money intended for salaries to address the agency’s mounting operational exigencies.  Then, despite earlier promises to the contrary, the Biden Administration told the Border Patrol it would not request supplemental money from Congress because doing so would admit there was a crisis on the border.  

Having been stripped of its ability to enforce the law and knowing the Biden Administration would ultimately release all of the illegal border crossers anyway, the Border Patrol created a plan to at least improve safety.  First, to mitigate the national security risks, leadership insisted on screening all the aliens apprehended by taking a digital photo, digital fingerprints and conducting background checks.

Then, to speed up processing times and help clear out the stations, the Border Patrol truncated the intake process. Instead of issuing NTAs, they resurrected the Form I-385, which was a form formerly used by the Border Patrol for the transfer of aliens (typically to ICE), and transformed it into an identity document for the illegal aliens.  After conducting the security checks and creating the new documentation, agents released the aliens with a copy of their I-385 and instructions to report to a local ICE office when they reached their final destination.  (See Check-In | ICE)

The Biden Administration, which had no intention of changing its policies but was eager to avoid the political spectacle taking place along the border, agreed to the new intake process and said it could be justified through the application of “prosecutorial discretion.”  After some debate, it was given a new name: Notice to Report.

The program, over time, did help clear out aliens from Border Patrol facilities.  The problem was that this Notice to Report program had no basis in law and the Biden Administration had no discretion to simply release illegal aliens apprehended at the southern border without placing them in removal proceedings.  This was because of a long-standing statute adopted by Congress that governs processing of aliens apprehended at the border: 8 USC 1225. 

The Law

Absent the use of Title 42 expulsions, Title 8 of the United States Code sets forth the specific process immigration officials must follow when encountering aliens at the border. 

First, aliens arriving or present in the U.S. who have not been admitted are deemed “applicants for admission.”  All applicants for admission must be inspected by immigration officers. (8 USC §1225(a)(1) and (a)(3))

Upon inspection, federal law permits only handful of outcomes.  First, and most obvious, immigration officers may deem the alien admissible and permit the alien to enter the U.S.

Immigration officers may also allow the alien to withdraw his/her application for admission and immediately depart the U.S.  (8 USC 1225(a)(4); 8 CFR 235.4)   

In addition, Immigration officers may, on a case-by-case basis, parole the alien into U.S. under 8 USC 1182(d)(5)(A).  Parole is not a determination of admissibility, but it allows the alien to temporarily enter the U.S. “for urgent humanitarian reasons or significant public benefit.” 

[Note that 8 CFR 1.2 clarifies that “an arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act.” In addition, 8 CFR 212.5(e)(i) provides that the issuance of a charging document will generally terminate the parole and that any further inspection or hearing shall be conducted under section 235 or 240 of the INA.]

Pursuant to 8 USC 1225(b), aliens who are deemed inadmissible (including those claiming asylum) fall into one of two categories. Immigration officers may process them either through: (1) expedited removal, or (2) regular removal proceedings under 8 USC 1229a (INA 240). There are no other choices.  See Jennings v. Rodriguez, 583 U.S. __ (2018)(describing the regular removal proceedings set forth in 8 USC 1225(b)(2) as a “catchall provision” for all aliens not covered by expedited removal); Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020); Matter of M-S-, 27 I. & N. Dec. 509, 510 (BIA April 16, 2019).

Expedited removal is generally used for aliens who are inadmissible due to fraud, misrepresentation, or lack of valid documentation.  (8 USC 1225(b)(1))  When processed through expedited removal, federal regulations require immigration officers to order the alien removed through the issuance of a Form I-860, “Notice of Order and Expedited Removal.”  (8 CFR 235.3)  The aliens must be detained and, absent a credible asylum claim, removed from the U.S. as expeditiously as possible without a hearing before an immigration judge.  (Id.)  

[Note that immigration officers have discretion to place aliens who could be processed via expedited removal into regular removal proceedings.   Innovation Law Lab v. Wolf, 951 F.3d 1073, 1084 (9th Cir. 2020)(citing Matter of E-R-M- & L-R-M-25 I. & N. Dec. 520, 522 (BIA 2011); see also Congressional Research Service, The Law of Asylum Procedure at the Border: Statutes and Agency Implementation, p. 18 (April 9, 2021))  Aliens who are determined to have a credible asylum claim are placed into regular removal proceedings.] 

All inadmissible aliens who are not placed in expedited removal must be detained and placed into regular removal proceedings under 8 USC 1229a (INA 240).  (8 USC 1225(b)(2))  Here, federal regulations require immigration officials to issue aliens a Form I-862, “Notice to Appear” (NTA), which directs the alien to appear in immigration court on a specific date, formally initiating the removal process. (8 CFR 235.6(a)(1)(i); 8 USC 1229)  Under certain conditions set forth in 8 USC 1226, an alien can be released pending a decision whether to remove the alien.  See Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018); Texas v. Biden, 21-10806 at 100 (5th Cir. Dec. 13, 2021); 8 CFR 212.5(b))

The Fallout

The Biden Administration failed to follow this process set forth in law.  In reality, the Border Patrol could not because the Biden Administration would neither change its policies nor give the Border Patrol the tools necessary to enforce the law. 

Others were unhappy too. Immigration advocates repeatedly criticized the NTR program because they felt it created confusion and an extra step for illegal aliens who intend to apply for asylum and get work authorization.  In addition, ICE agents now had to spend significant man hours preparing NTAs for the aliens who were appearing as walk-ins.  Finally, Members of Congress were increasingly critical of the Administration’s new, ad-hoc process that upended all standard operating procedures.

In response, the Department of Homeland Security took several actions.  In September, Immigration and Customs Enforcement (ICE) created a new, dedicated online appointment portal allowing aliens released with these so-called NTRs to book appointments and change addresses online.

In October, ICE began mass mailing NTAs to the illegal aliens who had not yet reported to ICE—approximately 78,000.  These NTAs were sent in a packet of documents, which also included an ICE Form G-56 (ICE Check-In Request), a change of address form, a list of pro-bono legal services and a cover letter. 

Remarkably, the cover letter addressed to the illegal aliens sounds almost apologetic.  It states: “You and your family made a difficult and dangerous journey to get to the United States. Federal Agents at the Border released you so that you can apply for legal status in the United States. Following the instructions in this letter and reading all the forms in this packet will help you.”  It then instructs the aliens on how to report to ICE and informed them that during their ICE appointment:

  • An officer will ask for information and fingerprints;
  • They will get instructions about what to do next;
  • They will get more information on how to find legal help and other resources; and
  • They will get documents to help them find housing, services, education, and work.

The letter concludes by reminding aliens: “It is very important that you report to the ICE Field Office, and you show up at your immigration court dates. This will help ensure the best possible outcome and allow you to be in the United States while you wait for the judge to hear your case.”

 

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Whether these packets were ever received by the illegal aliens is still unclear.  But ironically,  immigration advocates complained loudly to the administration that mailing NTAs to apprehended aliens could have adverse consequences for them.  (See, e.g. CNN, Nov. 16, 2021)  This may have been the reason that, by mid-November, Homeland Security Secretary Mayorkas announced in a Senate hearing that the Department would discontinue the practice of issuing Notices to Report.  (See C-SPAN, Department of Homeland Security Oversight Hearing, November 16, 2021 at 03:28:12)  

Analysis

The NTR program has had an enormous impact on immigration enforcement.  The Border Patrol released aliens into the U.S. with virtually no way of deporting those who do not want to be found.  Between March and August 2021, over 104,100 aliens were released into the U.S. through this program.  Of that number, more than half (about 54,000) failed to report, and the likelihood that ICE will find them and issue NTAs to begin the removal process is slim.  Of the roughly 49,900 aliens who did report to ICE, only 16,000 (15.6 percent) received NTAs to begin the deportation process. (Senator Ron Johnson, Press Release, Jan. 11, 2022)  

None of this would have happened if the Biden Administration had upheld its duty to enforce the law. Instead, the Biden Administration insisted on implementing its open borders policies at all cost, relegating the Border Patrol and the American people to nothing more than collateral damage.        

The termination of the NTR program also means the Biden Administration will likely increase the use of parole as a means of quickly releasing apprehended aliens into the U.S.  Indeed, upon taking office, the Biden Administration promptly began using parole as an alternative way of accomplishing this—a move that has had the broad support immigration advocates.   They have long pushed the Administration to use parole as a way of circumventing detention and deportation proceedings, and enabling illegal aliens to obtain work authorization, and potentially green cards under INA Section 245.

Federal judges, however, are beginning to warn the Biden Administration that the mass use of parole is – like the NTR program – illegal.   In a decision published just weeks ago regarding the Remain in Mexico program, the Fifth Circuit Court of Appeals stated that applying parole en masse is not a legal alternative to processing illegal aliens at the border pursuant to 8 USC 1225.  In its discussion, the court provided a lengthy and illuminating history of the humanitarian parole statute (8 USC 1182(d)(5)) and how Congress has amended it precisely to limit its scope.  Texas v. Biden, 21-10806 (5th Cir. Dec. 13, 2021)  It reads:

“Parole began as an administrative invention that allowed aliens in certain circumstances to remain on U.S. soil without formal admission.  Congress codified the practice when it initially enacted the Immigration and Nationality Act (the "INA") in 1952, giving the Attorney General discretion to ‘parole into the United States temporarily under such conditions as he may prescribe . . . any alien applying for admission to the United States.’  Id. at 10-11 (citations omitted).

“Throughout the mid-twentieth century, the executive branch on multiple occasions purported to use the parole power to bring in large groups of immigrants.  In response, Congress twice amended 8 U.S.C. § 1182(d)(5) to limit the scope of the parole power and prevent the executive branch from using it as a programmatic policy tool. First, in the Refugee Act of 1980, Congress added § 1182(d)(5)(B), which prevents the executive branch from paroling refugees unless ‘compelling reasons in the public interest with respect to that particular alien require’ parole. Second, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Congress amended § 1182(d)(5)(A) by providing that parole may be granted ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.’” Id. at 10-11 (citations omitted).

“As it stands today,” the Fifth Circuit wrote, “the § 1182(d)(5) parole power gives the executive branch a limited authority to permit incoming aliens to stay in the United States without formal authorization when their particular cases demonstrate an urgent humanitarian need or that their presence will significantly benefit the public. The power must be exercised on a case-by-case basis.’” Id. at 11 (citations omitted).

The Fifth Circuit concluded, “DHS cannot use that power to parole aliens en masse; that was the whole point of the ‘case-by-case’ requirement that Congress added in IIRIRA. So the Government's proposal to parole every alien it cannot detain is the opposite of the ‘case-by-case basis’ determinations required by law.”  Id. at 103 (citations omitted).

This analysis by the Fifth Circuit Court of Appeals underscores what critics have long been saying: Biden’s use of parole violates federal law and should be stopped.  Congress should therefore immediately demand the Department release more information, including the guidance it has provided Border Patrol officials on when it may be granted and the numbers of aliens who have received parole at the border. 

Indeed, some of this information was already requested in the letter sent to the Inspector General by Members of Congress last month.  But until the IG acts, lawmakers should continue to demand more information from DHS. For example, what is the specific urgent humanitarian benefit or significant public benefit the Department is using as justification for each instance it grants parole? Is DHS placing any conditions on parole?  Under what circumstances will parole be revoked?  Will parolees ever be served NTAs and placed into removal proceedings? 

Make no mistake, unless DHS actually intends to terminate the parole and place aliens into removal proceedings, these illegal aliens will remain in the U.S. indefinitely and, as “lawfully present aliens,” will be able to obtain work authorization, driver’s licenses, receive certain welfare benefits, and eventually apply for green cards under INA Section 245(a).  This may well be the goal of the Biden Administration, but it will spawn an even larger wave of illegal immigration in 2022.