A Simple Fix for the Border Crisis

America, you are welcome

Originality disclaimer: As always, when I have an idea — such as my idea for fixing the migrant crisis, below — I wish to make it clear that I am probably not the first person who has had this idea. If I am “stealing” the idea, this is unintentional: I merely haven’t encountered it before. Also, I am not an immigration lawyer: Corrections to any legal points I have gotten wrong are welcome.

i. Review of the failed new law

Readers may already be decided on the recently scuttled Senate “Border Deal,” as I am several days late in offering my own notes; those readers with a negative opinion on the deal may not find anything new in my own overview of the flaws. As such my comments do not intend to be comprehensive or overly nuanced.

The gist of the legislation was that if daily averages of encounters exceeded 4,000 or 5,000 over a seven-day period, the Secretary of Homeland Security would have discretionary or mandatory duty to refuse entry to illegal immigrants.

Of course, the Secretary of Homeland Security, who oversees Customs and Border Protection, already has a mandatory duty to refuse entry to illegal immigrants.

The major flaws of the proposed legislation were:

1. It would arguably have enshrined the current status-quo of rampant, endless asylum fraud (claiming asylum as a means of attaining de facto legal alien status on the spot, due to the inability of the review system to keep up with claims). By defining an “emergency” threshold over which the executive branch would cut the brakes on community release for pending asylum claims, Congress would make it clear that dealing with the root problem of rampant illegal migration is no longer normally part of executing the law of the land (though of course this would be in contradiction with Article IV-4 and the stated function of Customs and Border Protection). It would, in other words have amended Federal immigration law itself to say “only enforceable in emergency.”¹

2. Since the border crisis is a crisis of incentives and expectation — migrants come and claim asylum because they expect to successfully overwhelm the system collectively and gain entry and employment rights individually — short-term “closures” of the border of any sort (and this would not have even been such a thing, as will be clear in the next point) cannot reduce the number of intended crossings (departures from Central America into Mexico). No migrants would have cancelled their attempts due to the expectation of possible, temporary inconvenience (given that such inconveniences are already routine). This stands into contrast with the Remain in Mexico program, which disincentivized additional departures, at least in theory (the long term effects were obscured by lockdowns). As such, “emergency” closures either cannot reduce crossings or can only do so by creating an unsustainable condition of continually increasing backlog on the other side of the border.

3. Worse, border “emergencies,” should they ever have been declared, likely would not have substantially reduced community release in practice. All asylum claims would still have required two asylum officer reviews during “emergency” authority, presumably without any difference in outcome from current encounters (high rates of community release). It is already the case that the law demands the expedited release of encountered illegal aliens without due process except if “asylum.” Therefore, reiterating point 1, this is just an amendment to “actually enforce existing immigration laws only in emergencies.”

4. Finally, and most astoundingly, it does not appear possible for the “emergency” threshold to ever have been reached due to the weird exclusion of aliens from any country besides Mexico or Canada from the relevant daily counts. The current migrant crisis predominantly involves nationals of other countries besides Mexico — implying that December’s record levels were only about half the “emergency” threshold.

https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters

Review of the failed, bad new law over —

ii. Now to fix the border crisis

The crux of the problem facing America is that:

1. Migrant invasions cannot be stopped unless they are disincentivized (no expectation of collectively overwhelming the asylum system and individually gaining entry and right to work) This requires the achievement of widespread anecdotes of virtually universal failure to do those things. Nothing less than this will arrest future inflows.

2. Per current law, based primarily on reforms in 1980, any alien arriving at a port of entry to the United States or already physically within the country can actively or defensively claim asylum (they cannot be deported without an opportunity to make such a claim). The law does not assign a numerical limit in this respect.

3. “Asylum” is distinct from “refugee” as a Federal legal status in the matter of arrangement — refugees make their claims before arriving at the border or within the country, and afterward arrive “by invitation.” US immigration law allows the President to assign discretionary annual limits to refugee admissions (“ceilings” applying to specific global regions) — from here, to be referred to as the Refugee Ceiling. Here are the ceilings since 1980 (all after 1982 were discretionary):

   

4. The law meanwhile, again, mentions no limit on how many individuals can claim asylum (either at the border or within the country). However, and this is important, the subjective qualifications for both categories are the same; both legal regimes were created for the same motivations, with the modern legal history of asylum being indistinguishable from refugee laws until 1980; and the current version of the same law does not offer a separate definition for “asylum,” only for “refugee” — asylum is thus the legal procedure that follows the claim by any alien to be a refugee while already at the border or within the country.²

5. It is unlikely that Congress will reform this law any time soon (not because they can’t due to the UN refugee charter or any Constitutional restrictions³, just because they won’t want to).

6. Therefore action must be taken by the executive branch alone, using interpretations of existing law backed with lawfare — as was the approach of the Trump administration. The executive branch further has an obligation to do so regardless of party or voter preference, in accordance with Article IV-4 (the United States shall “guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion”) and 6 U.S. Code § 211 (specifying the duties of Customs and Border Protection).

https://www.law.cornell.edu/uscode/text/6/211

Failing to quell the migrant invasion represents violation of the Presidential oath in any case (“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States"), regardless of legal contradictions within immigration law.⁴

7. Finally, it is unclear if the previous executive solution to the crisis — Remain in Mexico — would have been successful as a disincentive in the long term; or is still logistically feasible now; or would be successful as a disincentive now even if feasible.

Therefore, a different strategy for ending asylum fraud within the bounds of existing law is required.

iii. This leads to the solution: Just count all granted asylums against the Refugee Ceiling

The solution is for the President at the moment to simply use the his existing legal authority limiting refugee admissions, ignoring or inviting conflict with limitations on removal that will be discussed in the next section.

1. The executive branch must advance a legal theory that grants of asylum “use up” annual refugee spots. Asylum is the claim to be a refugee — when it is granted, the Refugee Ceiling has one less spot before being reached.

2. In concert with this, new rules must be issued for automatic granting of asylum for any alien individual for whom it is claimed (counting members of families) beginning on January 1 of each year, barring only the patently ineligible. This cannot count as deprivation of due process since it is granting and not removing legal rights.

3. Once the Refugee Ceiling has been reached, it is not possible to claim asylum for the remainder of the year (or obviously, to qualify for refugee status for those applying through the normal channel)unless the President exercises the existing avenues for ad hoc revisions.

That is it. Within weeks or months of the beginning of the year, depending on the President’s chosen Refugee Ceiling, asylum becomes defunct as an exception to laws regarding the interdiction and expulsion of illegal aliens at the border or within 100 miles of it (the standard for expedited removal since 2004).

iv. The legal case (and the biggest obstacle)

Websites discussing immigration law adamantly claim that there is no limit on asylum. This legal argument — that the Refugee Ceiling is the limit on asylum, rests on the fact that

1. The law regarding asylum does not say that claims may not be limited.

2. The aforementioned unity between the intentions and logic of the laws on refugees and asylum (the spirit of the law):

   1. “The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title. […] The burden of proof is on the applicant [for asylum] to establish that the applicant is a refugee, within the meaning of section 1101(a)(42)(A) of this title. To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant. (https://www.law.cornell.edu/uscode/text/8/1158)

   2. It is irrational to create the Presidential authority to limit refugee admissions annual but not to limit claims of asylum. It cannot be that the potential necessity of refouler proscribes numerical limitation on asylum (because, unlike refugees, the asylum claimer is already here and thus must be returned from here if denied), since that necessity does not proscribe other types of limitations written in 8 U.S. Code § 1158 (in other words, if any asylum claim can be denied for any reason besides eligibility, it can be denied for numerical limits). Therefore, since there is no rational argument for a distinction between refugee admissions and asylum claims in terms of being limitable, but no separate limit is mentioned for asylum claims, both numerical limits are one and the same.

3. Thus the only obstacle to suspension of asylum due to the Refugee Ceiling being reached are the limitations on removal given in 8 U.S. Code § 1231, “Restriction on removal to a country where alien’s life or freedom would be threatened,” which are reflexive of 1158 in terms of what basis of “threats” justify special consideration and how the validity of claimed “threats” is adjudicated. Here it can only be remarked that additional creativity and willpower would be required to surmount the problem (the problem being lawsuits, etc.).

As mentioned, immigration law websites strenuously argue that this interpretation is not available to the government:

How Many People Can Get U.S. Asylum?

U.S. immigration law doesn't set a limit on the number of people granted asylum each year, but the president does set a limit on refugees.

https://www.alllaw.com/articles/nolo/us-immigration/how-many-people-can-get-asylum.html

These claims, as far as I can tell, all merely reference each other, and are not rooted in any written law or legal precedent. One wonders in fact if the reason for this claim is, above all, that these websites do not want the reader to think that it is legally impossible to interpret US immigration law this way (if there really is solid stare decisis behind this claim, I would think these websites would cite a relevant case). And even if there is some precedent, countering and reversing this precedent the legal strategy a motivated administration should pursue.

Finally, though it is banal to make this point, it is not the case that interpretation of US immigration law is bound in any way by international conventions, including the UN refugee convention. The Supreme Court does not consider this convention to be self-enforcing. The only limitations on expulsion of those who claim refugee status are thus those specifically enumerated in 8 U.S. Code § 1231 (which, as said above, are the primary legal obstacle to this “solution”).

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1. “Emergencies only” is in fact is how the law had been executed between 1996 and 2017; it just doesn’t help to enshrine the principle.

2. See quotes in 2-a of segment iv., “The legal case.”

3. Unless the 1996 law of expedited release is at some later point overturned on civil rights grounds, but as of now asylum is the only subjective, broadly-available exception to removal without due process.

4. This is not an attitude we want the President to take when it comes to US nationals and citizens (since “protecting and defending” can be broadly and subjectively defined at any given moment), but to imagine that it does not apply to nationals of other countries presumes the founders didn’t understand war and invasion as existential threats to any government and society (rather than as concepts subject to legal and political interpretation).