Enforcing Laws at the Border

[md-2000]

@OldOlds

power to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” if their entry “would be detrimental to the interests of the United States.”

As I recall reading, this power was applied during the pandemic, when there was a demonstrable “deriment”. Afterwards, the cours might rule that the specific detrimnet no longer exists. I imagine Biden could claim the high volume itself is sufficient detriment, depnding on what the courts say about that claim.

The bit about the majority claiming asylum at the border was IIRC from a NYTimes article a while ago. (The article also pointed out that while a decade or two ago it was mexicans, most now are from points further south and from all over the world) That’s why there are people camped out at the bridges and across the river from entry points, waiting for a turn to claim asylum. Of course, some people still try illegal crossings.

What is affirmative asylum?
An affirmative asylum seeker submits an asylum application to the Department of Homeland Security after entering the country. In this case, they proactively seek asylum status.

What is defensive asylum?

A defensive asylum seeker requests asylum as a defense against deportation during a standard removal proceeding. This means they are already being deported when they claim asylum to stay in the US.

I find this bit; a Border Patrol summary for one week…

Asylum seekers are again opting to turn themselves in to Border Patrol despite the Biden administration’s “carrot and stick” approach of legal pathways and harsh limits on asylum access. Shelters and migrant routes are similarly full throughout Mexico.

indications are some cross illegally but then go “seek out” CBP to claim asylum.

[CoolHandCox]

First, thanks for replying upthread to my “definitions” of the different immigration terms. That was helpful.

@Falchion

For better or worse, the point is that (while Biden no stranger to knowingly taking unlawful executive action) if he has authority to issue the executive order under the existing law, then the existing law already gives him the necessary authority.

Sure, I agree with that in general. I would guess, every executive order includes as it’s authority: Executive Constitutional authority and US Statutory Law. Meaning, I can do this because the constitution says I can, and I can do this because the law says I can. It doesn’t make it right.

My nitpick is it’s better to do things because the law explicitly says you can (as I’ll go into detail below). I don’t know the answer to that for this specific purpose of limiting asylum seekers - I assume he cannot. Or rather, I do know they were trying to get this specific purpose to limit asylum seekers passed into law weeks ago, and it did not pass. So now Biden is going to do it anyways. I imagine if Biden does do it via executive order he’ll invoke several broader US laws to claim authority (like 212f, Title 42, etc.) - but it doesn’t mean the laws says Biden can do that.

[This is just to contrast, and not directed at you] Trump used an executive order for the infamous Muslim Ban - limiting visa applicants from specific countries. It also relied on his executive authority and US law (the magical 212f law mentioned above). Is that legal under US law? Was Trump just enforcing a valid law? Likely the answer is GD territory, but I think it’s factual that you cannot break one law to enforce another - ie, you can’t discriminate (illegal) to enforce the broad powers of the 212f immigration law (legal). Again, best to get the explicit authority from Congress.

Either way, it still gets you back into needing the resources necessary to enforce the law (or executive order) at the border.

[md-2000]

The answer to any executive authority decision is - it depends if the courts allow it. When the whole world closed down travel, it would be difficult to contest that border crossings could be heavily restricted. Is the fact that today “congress can’t get its act together” sufficient to satisfy the “detriment” claim? It will depend on the courts. (IIRC, wasn’t Trump’s Muslim band nullified by the courts at one point?)

I suspect that is why Biden has not invoked executive power until now - the realization that the courts may not allow it to proceed. Time will tell. As you say, GD territory.

[CoolHandCox]

I think I’m better understanding the OP’s question now. Feel free to correct me - I think the OP, or what he’s hearing and relaying here is: Are there broad laws that can be interpreted to allow the President to do things not currently being done, to have the effect of stopping the crisis at the border.

I don’t think that’s literally the question, but the inference being asked. Meaning, 212f allows you to take this extreme action, we think the extreme action is legal (some may disagree), and doing that extreme action would “stop the crisis at the border” or whatever. That is difficult to answer because it’s not clear what is legal or not.

You can always press the laws to the extreme and see if a court or congress stops you. It’s done all the time. I won’t get into whether pushing a law to it’s max/past the max is wise, moral, counterproductive, or whether doing so might violate other laws.

I still think the main problem is resources, not lack of clear authority.

[OldOlds]

@CoolHandCox

Are there broad laws that can be interpreted to allow the President to do things not currently being done, to have the effect of stopping the crisis at the border.

That’s half of it. Definitely germane.

The other half is if there were a law that said something like “all illegal entrants shall be deported within one month/held in detention/summarily executed” and the administration were simply ignoring that. Or, as a different example, if an asylum request was inherently invalid because the requestor had passed through a safe third country (ie Mexico) but had not requested asylum there, and instead of automatically rejecting them the administration was ignoring that request and allowing them to make a claim in the US.

Again, this is driven by a claim by Republicans who say the border deal was unnecessary because existing laws are sufficient and ignored.

[Falchion]

@OldOlds

The other half is if there were a law that said something like “all illegal entrants shall be deported within one month/held in detention/summarily executed” and the administration were simply ignoring that. Or, as a different example, if an asylum request was inherently invalid because the requestor had passed through a safe third country (ie Mexico) but had not requested asylum there, and instead of automatically rejecting them the administration was ignoring that request and allowing them to make a claim in the US.

It’s very difficult for the legislature to compel executive action, but that’s a different question than whether or not the executive needs additional authority (which is itself different from asking whether they need additional resources).

For example, 8 U.S.C. 1225 (which governs expedited removal of inadmissible aliens at the border) has a lot of “shall” language in it regarding detention and removal. But if the authorities don’t have the resources, what are they supposed to do? But it would also be false for the executive to say that it doesn’t have authority absent additional legislation.

[CoolHandCox]

@OldOlds

Again, this is driven by a claim by Republicans who say the border deal was unnecessary because existing laws are sufficient and ignored.

Got it. It’s a good question. I don’t think it’s a FQ, though as we’d all have to make so many assumptions about so many things. But not my call.

I think all the answers above are valid and correct enough.

So, now thinking about the border deal being unnecessary because we have laws already - I think that has to apply to a broad law and claiming the broad law can do it. Here’s two main purposes of the border deal:

Asylum Process**

The bill would make it more difficult for migrants to claim asylum, and would remove the courts from the appeals process, putting such decisions in the hands of an internal review board. It would raise the bar for migrants who say they have a “credible fear” of persecution if returned to their home countries.

I think a President would want specific legal cover for that. I’m sure he could use an EO to do it, but he’s making pretty big changes to how things are done (removing courts, raising legal standards) - I imagine put in place by existing law. Seems like Congress should be changing the laws.

Closing the Border/Caps**

One of the most significant changes to border policy would be the creation of a trigger that would effectively close the border to migrants trying to cross into the United States without authorization. The trigger would be tripped if the average number of migrants encountered by border officials exceeded 5,000 over the course of a week or 8,500 on any given day.

Again, I think a President would want specific legal cover for that. Without specific crossing numbers, he’d be arbitrarily closing the border contrary to existing law (that says everyone has a right to seek asylum). To use existing laws to do this, he’d have to gin up some factual reasons to put a cap on asylum seekers - like a health crisis to use Title 42; or use 212f to claim the person is detrimental to US interests. Again, seems like Congress should be changing the laws on this.

All this to say, again, I think it’s mostly a matter of resources. Even these new laws need funding to actually work (which was also included in the bill).

**Since there are many versions of this bill these are more examples, or some draft version, to clarify specific clear laws versus broad laws that you’d have to mold to make them work.

[md-2000]

So if a refugee claimed asylum at the broder, was deported, and then killed by his home country’s government; and the deportation order was done by executive action that the courts later determined was not a valid action the president could take, or an excessive application of that power; could the dead refugee’s family sue the US government over his death?

[Really_Not_All_That_Bright]

Not in a U.S. court. The federal government has not authorized suits for money damages against itself for violations of immigration law affecting non resident aliens. At best, they might be entitled to a court order holding that the applicant should have been admitted (which may have an impact on family members’ right to enter).