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Biden’s plan for immigration is as porous as the border

Border Wall
(Sandy Huffaker/Getty Images)
A Mexican National carries a ladder in order to view the border wall prototypes under construction looking from Mexico on October 5, 2017 in Tijuana, Mexico. 

The White House has issued a fact sheet that describes President Joe Biden’s plan for establishing a fair, orderly, and humane immigration system.

It says, “While President Biden can implement significant parts of this strategy within his executive authority, Congress must also act.”  But it doesn’t reflect much effort to make the plan acceptable to the Republicans — and Republican support is needed to pass the necessary legislation.

It calls instead for passage of the necessary legislation “through reconciliation or other means.”

Reconciliation is a special process that was established by the Congressional Budget Act of 1974 to conform tax and spending levels to levels set in a budget resolution.

The advantage of the reconciliation process is that it permits a bill to be passed in the Senate with a simple majority. In other words, it would avoid a Republican filibuster. The 50 Democratic senators would need 10 Republican votes to reach the 60 votes required to end a filibuster, which is practically impossible at the moment.

It is extremely doubtful, however, that the Senate parliamentarian will permit the Democrats to include immigration reform legislation in a budget bill that is going through the reconciliation process.

According to Bill Hoagland, reconciliation is reserved for policies that have a direct budgetary impact, i.e., that would increase or lower the federal government’s tax revenue and spending.  It is not intended to make major policy changes. Hoagland was the director of budget and appropriations in the office of Senate Majority Leader Bill Frist from 2003 to 2007.

A single Senator can ask the parliamentarian to remove immigration provisions from a budget bill that is going through the reconciliation process by raising a point of order. If the parliamentarian agrees, it requires a 60-vote majority to overrule his decision.

Issues the plan should have addressed

Biden’s plan does not include sanctions to discourage illegal entries. Illegal crossers can keep trying until they succeed in reaching the interior of the country, and when they reach the interior, they are home free — unless they are found to be a threat to national security or public safety.

Ronald Vitiello, who was ICE’s acting director in 2018 and 2019, has said that, “The odds of being arrested just for being in the country illegally were always extremely low, and now they’ve basically ruled it out by policy.”

It shouldn’t be this easy for aliens we know nothing about to enter illegally and remain here unlawfully, and this is especially true while we are in the midst of a deadly pandemic.

Texas Gov. Greg Abbott has issued an executive order to limit the ground transportation of undocumented aliens through Texas who have recently been released from border patrol custody. According to Abbott, “busloads of migrants, an unknown number of whom are infected with COVID-l9, are being transported to communities across the State of Texas exposing Texans to the spread of COVID-19.”

Consequently, he orders that —

  1. No person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants who have been detained by CBP for crossing the border illegally.
  2. The Texas Department of Public Safety is directed to stop any vehicle upon reasonable suspicion of a violation of paragraph 1, and to reroute such a vehicle back to its point of origin or a port of entry if a violation is confirmed.

Biden’s plan calls for “improving” expedited removal proceedings to fairly determine which individuals have legitimate claims for asylum or other forms of protection. Aliens who don’t qualify for protection will be removed to their countries of origin.

Apparently, though, Biden doesn’t intend to fully utilize expedited removal proceedings.

Section 1225(b)(1)(B)(IV) of the Immigration and Nationality Act provides that aliens in expedited removal proceedings must “be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” His plan does not include the construction of additional detention facilities at the border, which would be necessary to fully utilize these proceedings during the present surge in illegal crossings.

The plan emphasizes the strategy of reducing illegal migration from Central America by addressing the root causes for leaving those countries to come to the United States. This strategy has not worked in the past, and there is no reason to expect it to work now.

Biden was the Obama administration’s point-man for the $750 million Alliance for Prosperity strategy in 2014, which was supposed to dissuade unaccompanied minors from coming to the United States. It helped to reduce migration in the short term, but it did not have a significant impact on the root causes for leaving Central American to come to the United States.

The immigration court currently has 535 judges to deal with its backlog of 1,357,820 cases. The plan calls for hiring an additional 100 judges to deal with this crisis.

The immigration court’s most productive year since fiscal 2008, was fiscal 2019, when it completed 276,970 cases. But it received 546,248 new cases that year, which meant that the backlog increased by 269,278 cases. In the second quarter of fiscal 2021, it received 66,158 new cases and completed 43,652, which increased the backlog by 22,506 cases.

In fact, the immigration court has not reduced the backlog a single time during that 13-year period.

How is a 20 percent increase in the size of the court going to turn this around?

Not to mention the fact competent immigration judges don’t grow on trees. Immigration law is “second only to the Internal Revenue Code in complexity,” and we’ve already been promoting people with no immigration law experience whatsoever to be judges.

Biden has to address these problems to get enough Republican support to pass the legislation needed to implement his plan.

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 backlog Biden immigration policy border surge Deportation from the United States Filibuster Greg Abbott illegal border crossings Illegal immigration to the United States immigration courts Immigration judges Joe Biden Reconciliation Removal proceedings U.S. southern border

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