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‘Catch and release’ is back — with added problems

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President Joe Biden issued an Executive Order last week in which he says that the United States is a country with borders that must be enforced but that this does not require us to ignore the humanity of those who seek to cross them.

I agree, but his plan for accomplishing this objective doesn’t include meaningful border security measures or eliminate the magnets that encourage illegal immigration. In fact, it creates new ones. I expect this to antagonize Republicans who are concerned about border security.

What happened to Biden’s vow to unite people of both parties? Or his promise to work with Congress to establish a legalization program?

Legalization programs are exceptionally difficult to establish. It has been 34 years since the last one, which was established by the Immigration Reform and Control Act of 1986 (IRCA). 

Former President Barack Obama wasn’t able to do it, and during the first year of his presidency, he had the majority in the House and a strong enough majority in the Senate to stop a filibuster.

Biden just has razor thin majorities.

What was different when IRCA was passed?

Republican President Ronald Reagan answered this question in the statement he made when he signed IRCA into law: This “has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.”

We won’t see that kind of bipartisanship while Biden is president if he continues to antagonize the Republicans with his immigration measures.

Highlights of the executive order

The executive order requires the administration to establish and implement a multi-pronged approach for managing migration throughout North and Central America that reflects the Nation’s highest values.

It requires actions that will address the “root causes” of illegal migration from Central America.  This will include helping the governments of El Salvador, Guatemala, and Honduras to combat corruption, strengthen democratic governance, counter and prevent domestic violence and violence perpetrated by criminal gangs, and improve economic security.

This is not a new idea. The United States has been trying to help the Central American countries with these problems for a long time. Between fiscal 2013 and fiscal 2018, it provided $3.7 billion in aid to Central America.

It’s not new to Biden either. The Obama-Biden administration promoted economic prosperity, improved security, and strengthened governance in Central America in 2014, with its U.S. Strategy for Engagement in Central America program.

This strategy has not eliminated the root causes of illegal migration from Central America, and there is little, if any, reason to think that it ever will.

Moreover, this is an especially bad time to be undertaking expensive foreign aid projects. The national debt is almost $28 trillion. That’s $84,216 per citizen or $222,192 per taxpayer. Also, a $1.9 trillion COVID relief plan is moving through congress, and this is not likely to be the last time such aid is needed.

Expansion of lawful pathways

Biden’s executive order requires consideration of whether to reinstate the Central American Minors (CAM) program, which permitted certain minors in Central America to apply for refugee resettlement in the United States without leaving their own countries.

The benefit of this program was that unaccompanied alien children were able to apply for relief without having to make the dangerous trip to the United States.

But they don’t have to be able to establish a persecution claim if they come directly to the United States. Only 4.3 percent of the unaccompanied alien children who came here from noncontiguous countries between 2014 and 2019, have been repatriated.

The United States does not have to assume sole responsibility for helping the unaccompanied alien children from Central America. Their plight is an international problem. I suggested working with UNHCR to facilitate consideration of their claims outside of the United States before the CAM program was established.


The executive order requires an examination of precedential decisions on asylum eligibility for migrants who are fleeing domestic or gang violence.

Apparently, Biden is referring to Attorney General Jeff Sessions’s decision in “Matter of A-B-”  and the decision Acting Attorney General Jeffrey A. Rosen issued last month when he revisited “Matter of A-B-.”

Notwithstanding claims to the contrary, these weren’t political decisions. The Justice Department’s Office of Legal Counsel drafts the AG’s legal opinions.

In the absence of political pressure from the White House, the Office of Legal Counsel is not likely to reach different conclusions if it revisits these issues, and Biden has promised to make the Justice Department independent.

The executive order also rescinds the Trump memorandum that ended “catch and release.”

Catch and release is the Obama-era practice of apprehending aliens who have made an illegal border crossing and then releasing them if they promise to return for a hearing.

This might not be a problem if there were some way to keep track of the aliens after they are released, but there isn’t. They are free to go anywhere they want to go, and there are too many of them.

And it takes a long time to schedule hearings for them. The average wait for a hearing is 869 days.

Unintended consequences

Biden’s border security measures will make it possible for undocumented aliens to make illegal crossings without fear of being detained by the border patrol.

This will encourage illegal immigration from all over the world, not just from Central America.

Eleven Iranians recently were apprehended at the border. Iran is one of the four countries that the State Department lists as being state sponsors of terrorism.

This doesn’t just pose a threat to our national security. It also is a health threat. Aliens who enter without inspection and who aren’t detected can’t be screened to see if they have COVID-19, and I doubt that the border patrol will be able to give COVID tests to all of the undocumented aliens that they do detect.

Biden’s executive order — though framed in comfortable language — is likely to have decidedly uncomfortable consequences.

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 his blog at

Tags Barack Obama Biden executive order Biden immigration policy catch and release Illegal immigration Immigration detention in the United States Immigration Reform and Control Act Jeff Sessions Joe Biden

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