If anyone can seal the border, Donald Trump can. But can even he wrestle back control after President Biden’s “nation-wrecking nightmare” (Trump’s words, jarring but spot on)?
Trump would “seek to re-establish” his “Migrant Protection Protocols,” which saw the Department of Homeland Security refuse entry to those apprehended at the southern border, but allow them to stay in Mexico pending their removal proceedings.
Since 1997, all Trump’s predecessors possessed this potent statutory tool, yet only Trump used it. MPP took away aliens’ incentive to make bogus claims of fear to secure release into the U.S. DHS found it “indispensable,” resulting in “a rapid and substantial decline in apprehension[s].” Pre-COVID, MPP was truly the MVP of border security.
Stephen Miller, President Trump’s former immigration advisor, promises that Trump will again invoke Title 42, under which “we would send … straight back home” aliens entering illegally (Trump’s words). Since WWII, all Trump’s predecessors possessed this potent statutory tool, yet only Trump used it.
Trump would “push to revive” his “asylum cooperative agreements,” allowing DHS to send asylum-seekers to amenable countries to seek protection. Since 1997, all Trump’s predecessors possessed this potent statutory tool, yet (other than to a limited extent with Canada) only Trump used it.
Trump “will revoke” the student visas of “radical anti-American and antisemitic foreigners” and institute “strong ideological screening” — “If you want to abolish … Israel…. [i]f you’re a communist … you are disqualified” (his words). If Trump has the will, federal law has the way:
“Whenever the President finds that the entry of any aliens … would be detrimental to the interests of the United States, he may … suspend the[ir] entry,” the law states.
It’s the same reason the Supreme Court upheld Trump’s “travel ban,” as the statute “exudes deference to the President.”
Miller says that Trump will build “vast holding facilities” for illegal immigrants in removal proceedings. Shocking? Yet, in 1981, the much-revered Hesburgh Commission recommended similar “contingency plans for opening and managing federal processing centers …. where asylum applicants would stay” to “handl[e] possible mass asylum emergencies” — creating “a deterrent” for those “who might see an asylum claim as a means of circumventing U.S. immigration law” and preventing applicants from being “released … [and] later evade U.S. efforts to deport them”.
Trump says that “[o]n my first day … I will terminate every open borders policy of the Biden administration.”
But Rome wasn’t (re)built in a day. To prevail at the Supreme Court, Trump must abide by the Court’s rules for reversing prior administrations’ policies. Otherwise, his plans will be stymied, as when the Court derailed termination of Obama’ DACA program. To prevail, “reliance” interests of beneficiaries, even illegal alien beneficiaries of unlawful programs, must be considered. Makes my eyes roll, but those are the rules.
Trump pledges to “carry out the largest domestic deportation operation in American history” (his words) following the two to three million aliens Alejandro Mayorkas’s DHS has released into the U.S. But absent statutory changes, his administration is going to find that rather difficult. The immigration court backlog has skyrocketed from 1.3 million cases when Trump left office to over 3.6 million. DHS’s Inspector General concluded that “DHS may not be able to locate migrants” and over half a million fugitives already ordered removed have burrowed into the country.
To help, Trump plans to ramp up “expedited removal” to its statutory limit. However:
Expedited removal cannot be used against paroled aliens, and Mayorkas has already paroled more than two million of Biden’s migrants.
While the Supreme Court has concluded that ER doesn’t violate constitutional due process rights of aliens apprehended at, or shortly after, entry (since they don’t have any!), the Court telegraphed that this may not be the case for longer residents.
ER is hardly “expedited,” as most aliens who claim a fear of return are found to have a “credible fear” and dumped into the years-long immigration court backlog.
Miller says that Trump will “carry[] out workplace raids” to apprehend illegal workers — vitally important, as employer fines “are ridiculously low, sometimes less than a New York City parking ticket’’ (Bush official Stewart Baker) and the workers simply go down the street to the next employer after being let go.
Trump says he “will invoke the Alien Enemies Act to remove known or suspected gang members.”
But it can only be triggered by declared war or through a foreign state’s “invasion” or “predatory incursion.” Convincing a federal court that gangs/cartels are covered will be an uphill slog. However, the rise of “mafia states,” where the lines between government and organized crime have blurred, presents a powerful argument in the right circumstances.
What else should Trump do without legislative reform? Use his “holding facilities” to detain aliens previously apprehended at the border (as Congress has long mandated) and aggressively seek prison sentences for employers who knowingly hire illegal immigrants.
Biden broke the border. It will take time, but Trump can fix it.
George Fishman is senior legal fellow at the Center for Immigration Studies.
