The Conservative Case Against Boehner's Border Bill

Capitol Hill conservatives are not happy with Speaker John Boehner's (R-OH) $659 million response to the unfolding humanitarian crisis at the Texas-Mexico border. They are circulating a series of memos, including the one pasted below, detailing why the Boehner bill will fail to solve the problem.

From the memo:

• The bill does not address the cause of the problem – the president’s unlawful policies, particularly DACA.
• The bill does not actually require the president to do anything – the only thing it guarantees is that the president will get the money he requested.
• The bill appropriates money through 2015, creating a built-in budget cliff that might require Congress to reauthorize this bill, and tracks the amount of spending ($3.7B) in the president’s request.

Further Complicates Trafficking Law

• The bill appears to abolish voluntary return for UACs.

• Under current law, UACs from contiguous countries are subject to voluntary return, which can be accomplished by Border Patrol in as little as one day.
• Thus, the bill appears to put the majority – if not all – in the new court proceedings, where they are permitted to withdraw their application for admission to the U.S. at any time “in the discretion of the Attorney General.”

• The bill creates a new seven-day court proceeding for all UACs in which an immigration judge determines whether a UAC has a claim for immigration relief.

• If the judge determines there is a claim, then the UAC is placed in removal proceedings (issued a Notice to Appear before another immigration judge) or ordered removed – unless the UAC claims asylum.
• However, the majority of these UACs, who we know have been coached to claim asylum, will claim a fear of persecution or state their intent to apply for asylum. At this point, the immigration judge (in the new proceeding) will simply refer the UAC to an asylum officer in the current flawed asylum system, which remains unchanged by this bill, because the bill fails to strike the initial jurisdiction provisions of the TVPRA. In fact, a UAC could potentially circumvent this entire new process by claiming asylum and going straight to a USCIS asylum officer.
• This also allows UACs to go before an asylum officer even if an immigration judge (in the new proceeding) did not find that the UAC had a likely claim for immigration relief.
• In addition, the bill allows UACs to take advantage of the credible fear determination process, which they are not subject to under current law because they are protected by the initial jurisdiction provisions of the TVPRA. In other words, in addition to going to an asylum adjudicator to have their case heard on the merits in a non-adversarial setting (pursuant to the initial jurisdiction provisions), they can claim asylum in another setting.

• Perhaps most troubling, the House bill states that the DHS Secretary “shall permit” UACs who have received Notices to Appear (issued since Jan. 1, 2013) to appear before an immigration judge in the new proceeding created by the bill, move to have the NTA “replaced,” and apply for admission to the U.S. While the language is not entirely clear, it very well could result in UACs who have been ordered removed or who have failed to appear for removal proceedings and thus are fugitives to get another bite at the apple to remain in the U.S.

Creates More Loopholes in Asylum Law

• The House bill allows five bites at the apple for those claiming asylum:

• UACs are screened for credible fear by the Border Patrol;
• UACs go before an immigration judge in the new court proceeding to determine if they have a claim for relief;
• UACs are screened by an asylum officer for a credible fear of persecution;
• UACs then have their asylum case adjudicated by any asylum officer who can only grant relief or refer the case to immigration court; and
• If a UAC’s case is referred, the immigration judge will hear their case on the merits de novo.

• The House bill subjects all UACs to credible fear determinations, which is not the case under current law.
• It should be noted that as soon as a UAC claims credible fear or applies for asylum (which they have been coached to do), they can game the existing loose credible fear and asylum standards.
• In addition to UACs, as of July 8, 2014, 55,398 family units and 268,493 single adults have been apprehended in the Rio Grande sector alone. Many family units and adults claim a credible fear of persecution to circumvent expedited removal. According to DOJ statistics, in FY13, 74% of all affirmative asylum claims were approved by immigration judges, and 65% of all UAC asylum claims were approved by USCIS asylum officers (the remainder were referred to judges to hear de novo). According to USCIS, in 2013, 92% of credible fear claims were approved on the merits and the number of credible fear claims have increased 586% since 2007.

Does Not Mandate Detention

• The House bill does not use the word “detention” but rather “custody.” This is an important distinction because “custody” can be satisfied by transferring a UAC to HHS, which places the UAC in a non-secure setting.
• The bill does not strike the language in current law that requires DHS to transfer custody of UACs to HHS within 72 hours; or that provides that a UAC shall be placed in “the least restrictive setting that is in the best interest of the child;” or that a UAC “shall not be placed in a secure facility absent a determination that the child poses a danger.”
• The bill does not change current law that requires that USCIS adjudicate claims of asylum for OTM UACs. In practice, individuals who claim asylum are released pending adjudication of their claim. This bill does not change that.
• Importantly, the bill does not address administration policies that would require ICE to release many of these individuals from custody.

• In reality, under the bill, those not claiming asylum will be in custody, and even then, only for seven days until the new proceeding created by the bill takes place.

Does Not Deploy the National Guard to the Border

• The House bill does not deploy the National Guard to the border and does not require the Secretary of Defense to do so. Rather, the bill merely makes funds available for a potential deployment and states that the Guard may “provide assistance with operations on the southern border.”

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The House is scheduled to vote on Boehner's border bill this Thursday. With House Minority Leader Nancy Pelosi (D-CA) whipping hard against the bill, it is highly uncertain whether it will pass.