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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Tuesday, April 23, 2024

Biden’s Hope for Border Crackdown Dimmed by Real-World Limits

Share on X April 18, 2024, 2:00 AM PDT Biden’s Hope for Border Crackdown Dimmed by Real-World Limits Ellen M. Gilmer Ellen M. Gilmer Reporter Email Ellen M. Gilmer Tweet Ellen M. Gilmer Related Stories Mayorkas Impeachment Dies In Senate, Thwarting GOP Attack (1) April 17, 2024, 1:18 PM PDT Biden Says He May Have Authority To Close Border On His Own April 9, 2024, 8:45 PM PDT Biden’s Immigration Agenda Faces Uncertain Fate In US Courts December 22, 2023, 2:30 AM PST Search by Topic Asylum Health Insurance Coverage Determination Public Health White House still mulling options to deter illegal crossings Prospective action faces litigation, resource constraints President Joe Biden faces legal and operational obstacles if he tries to mimic Donald Trump’s policies to restrict asylum access and crack down on migrant arrivals at the US-Mexico border. Presidential power has persisted as a key point of contention between the White House and the GOP after the administration sought more legal tools to curb migration through a bipartisan Senate border policy deal. Republicans tanked the agreement and insisted Biden use the authorities he already has. Congressional Republicans have spent months pressuring the White House to take unilateral steps similar to those of former President Trump to reduce illegal crossings, and Biden last week said his team is still hashing out options. The problem, according to administration officials and several lawmakers and advocates, is that a key tool Republicans are pushing would run headlong into litigation and resource constraints. And border policy specialists dispute whether it would succeed in slashing illegal crossings. “There are some authorities there, it’s just not as broad as my colleagues think it is,” said Sen. James Lankford (R-Okla.), who helped negotiate a failed bipartisan border deal. “And it will be interesting to see what they can actually get through the courts.” The White House hasn’t made any decisions yet, an administration official who spoke anonymously to address internal discussions said Wednesday. Sen. James Lankford, Lankford's wife Cindy Lankford, and Sen. Kyrsten Sinema (I-Ariz.) walk down a stairwell near the Senate Chambers at the U.S Capitol. Sen. James Lankford, Lankford’s wife Cindy Lankford, and Sen. Kyrsten Sinema (I-Ariz.) walk down a stairwell near the Senate Chambers at the U.S Capitol. Photo by Anna Moneymaker/Getty Images At issue is Section 212(f) of the Immigration and Nationality Act, which generally allows the president to restrict the entry of certain immigrants into the US, though courts disagree about the scope of that power. The provision is one of several border measures the White House is weighing but has attracted the most scrutiny as it echoes Trump-era policies and marks a dramatic departure from Biden’s 2020 campaign pledge to restore asylum access. “No executive action, no matter how aggressive, can deliver the significant policy reforms and additional resources Congress can provide and that Republicans rejected,” White House spokesperson Angelo Fernández Hernández said in a statement. Legal Prospects Homeland Security Secretary Alejandro Mayorkas stressed the shortcomings of executive action last week, reminding lawmakers that litigation is essentially guaranteed. “Whatever actions we take are in fact litigated, and it’s unclear whether they would survive the litigation,” he said during a hearing. House Republicans impeached Mayorkas earlier this year over his handling of the US-Mexico border. The Senate on Wednesday tossed the charges, drawing fresh fury from Republicans who say Democrats don’t take border security seriously enough. Mayorkas Impeachment Dies in Senate, Thwarting Republican Attack Trump’s term in office offers legal lessons if Biden moves forward with a 212(f) policy restricting asylum access. The Supreme Court upheld his use of the authority to restrict arrivals of select nationalities, including those from several Muslim-majority countries. But Trump was stymied in court when he tried to use it to restrict asylum broadly at the border to address “mass migration.” Whether Biden can tailor an executive action that survives legal scrutiny remains to be seen. “Some have suggested I just go ahead and try it,” he said in an interview with Univision last week. “And if I get shut down by the court, I get shut down by the court.” Some hard-line Republicans have endorsed that approach. “The question is, why pussyfoot around it?” Rep. Dan Bishop (R-N.C.) said. “Why not go ahead and do it? You’re going to get litigation on everything.” Lawmakers who supported the bipartisan Senate deal argue the package would have avoided this legal uncertainty by giving the government clear, sweeping power to block migrant entries whenever the border is deemed overwhelmed. “If we passed the bill, it would be unambiguous that they have the authority,” said Sen. Tammy Baldwin, a Democrat in a tight reelection race in Wisconsin. ‘Slow the Flow’ Legal questions aside, it’s unclear whether using 212(f) at the border would succeed in driving down illegal crossings. The authority has limitations, and its impact depends on policy design and resources for implementation. “It is simply not a grand authority that permits the president to shut the border against migrants seeking protection,” said Aaron Reichlin-Melnick, policy director at the immigrants’ rights advocacy group American Immigration Council. He contrasted the authority with Title 42, the public health measure that allowed DHS to turn away migrants with minimal processing. American security forces prevent migrants coming to the border from crossing into US as Mexican authorities invite them to shelter in Ciudad Juarez, Mexico on April 17, 2024. American security forces prevent migrants coming to the border from crossing into US as Mexican authorities invite them to shelter in Ciudad Juarez, Mexico on April 17, 2024. Christian Torres/Anadolu via Getty Images) Many of the issues the Department of Homeland Security is already facing with border-crossers would remain the same if it pursues a 212(f) strategy focused on limiting asylum claims, he said. The agency already has broad asylum restrictions in place, denying access to anyone who hasn’t sought protection in other countries en route to the US. But those people still must be processed and screened under other legal standards, including the Convention Against Torture. The same would likely be true under new restrictions. With limited DHS personnel and capacity for detention and deportation, Reichlin-Melnick said, many of those people would be released into the US, as is the case now. “We cannot give ourselves resources,” Mayorkas said last week. “We depend upon the appropriators.” Resource availability and coordination with Mexico and other countries to take back border-crossers would help determine how successful a 212(f) policy is, said Chris Clem, former chief Border Patrol agent in the Yuma, Ariz., region. But he maintained it’s worth taking action to send a message to migrants that they should reconsider their journey to the US. “It’s not the end-all be-all, but it is something,” he said. “It can slow the flow down.” Election Year The White House’s long deliberation over whether to enact new migration restrictions comes amid increasing frustration among voters about the situation at the southwest border. Public concern about illegal immigration has risen over the past year among Democrats and independents, according to Gallup polls. While migrant apprehensions have dipped in recent months, they’ve hit record highs amid much of Biden’s time in office. The Border Patrol logged more than 2 million encounters at the southwest border last fiscal year, compared with less than 1 million in fiscal 2019. Many moderate Democrats on Capitol Hill have pushed the Biden administration to do more to manage the border. Sen. Jon Tester (D-Mont.), who’s politically vulnerable in this year’s election, last week demanded that the administration and Mayorkas, along with Congress, “step up” to address border problems. But he and other moderates have fended off GOP attacks by invoking Republicans’ rejection of the bipartisan Senate deal. “The border issue, the Republicans own it,” Sen. Catherine Cortez Masto (D-Nev.) said. “They’re the ones that didn’t vote to support it, and they should have.” Biden must also contend with potential fallout from progressives. He’s likely to pay a political price on the left if he enacts new asylum restrictions after campaigning on rolling back Trump-era policies, said Maribel Hernández Rivera, policy and government affairs director at the American Civil Liberties Union. The ACLU led litigation against the Trump 212(f) border regulation. Republicans aren’t likely to pull back on their criticism of Biden’s border policies even if he does take action with the legal authority they’ve pushed, Rep. Bennie Thompson (Miss.), the top Democrat on the Homeland Security Committee, said. Many have already thrown cold water on prospective moves by the White House. “If President Biden finally invokes 212(f), it will be in an exception-laden manner, amounting to nothing more than an election year gimmick that will be immediately challenged by allied groups in court,” said RJ Hauman, president of the National Immigration Center for Enforcement and a visiting fellow at the conservative Heritage Foundation. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/. “The American people won’t fall into a ‘See, I tried,’ trap,” he added.

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