Reading The Fine Print: Part 2: Title I --Who's Blowing All That Smoke?

Hugh Hewitt

5/20/2007 11:22:34 AM - Hugh Hewitt

A close read of Title I gives the impression that the drafters understood they'd be better off exhausting the reader with promises and declarations of good intentions before getting to the provisions of consequence. 

 Thus we have in Title I:

*the proposed build-up in Border Patrol agents (Sec. 502),

*much discussion of biometric data,

*an odd amendment to the existing law that appears to allow catch and release to continue but only after the posting of a $5,000 bond (Sec. 113(4)),

*a section promising to study "border security on certain federal land" which invites the U.S. Fish & Wildlife Service into the action --an ominous development for anyone wanting construction of the border fence to proceed quickly and free of the Section 7 consultation provisions of the Endangered Species Act,

*a long provision on the creation of a National Strategy for Border Security in Section 127 which leaveS us wondering why not develop the strategy first and implement regularization later (answer: no one will care what the strategy is later),

*another study in Section 128 on the Border Patrol's training and capacity (Section 128),

*instructions to train Customs and BP agents in fraud detection, a grant program of $50 million annually for law enforcement agencies in communities impacted by illegal immigration (but with no requirement that the grantee agencies cooperate fully with federal authorities),

*another study --Section 133's "Port of Entry Infrastructure Assessment Study", another plan, Section 134's National Land Border Security Plan, a "demonstration project"

*Section 135's "Port of Entry Technology Demonstration Program,"

*an instruction to the Secretary of Homeland Security to construct or acquire 20 new detention facilities in Section 137,

*and to top it all off in classic D.C. style, a new commission, the 17 voting member "United States-Mexico Border Enforcement Review Commission, with four appointees each from the governors of California, New Mexico, Arizona and Texas, the purpose of which is to study the overall enforcement strategies, program, and policies of Federal agencies along the U.S.-Mexican border" and to "make recommendations" about those policies.

Are your eyes irritated by all the smoke?

I think it is quite possible that every single provision called for in Title I except the increase in the authorized number of PB agents and the requirement of $5,000 bail before the release of an alien from noncontiguous countries could be accomplished by executive order.

So Title I is about 85% filler.  What about the increase in border patrol agents in Sec. 101?

The draft bill calls for "not less" that 2,000 in fiscal year '07, 2,400 in '08, and 2,400 more in each fiscal year through 2012, for a total of 14,000 over six years.

But of course appropriators are not bound by thisdirection: authorized doesn't mean funded.  A serious enforcement bill would have authorized an increase of up to 14,000 in fiscal year '07 and beyond, and laid down a real trigger of funded and deployed at some level telegraphing seriousness of purpose.

Title I doesn't inspire confidence to say the least.  It does no harm, of course, though paper shuffling and useless commissions aren't exactly cost-free. 

A note on the bail provision. Sec. 1 promised the end of "catch and release" by pledging a "catch and return" policy.  But the bail requirement of Section 113 seems to provide well-off illegal entrants with a "catch, pay, and release" option that --in practice-- would benefit an odd group of illegal entrants: those with financial resources, which may in fact be the very people we most want to question, correct? [# More #]  Section 113 is  an amendment to 8 U.S.C. 1226(a)(2), which currently reads:

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but
 
Sec. 113 "RELEASE OF ALIENS FROM NONCONTIGUOUS COUNTRIES" reads:
 
Section 236(a)(2)(8 U.S.C. 1226(a)(2)) is amended--
    (1) by striking "on";
    (2) in subparagraph (A)--
        (A) by inserting "except as provided under subparagraph (B), upon the giving of a" before "bond"; and
        (B) by striking "or" at the end;
    (3) by redesignating subparagraph (B) as subparagraph (c)
    (4) by inserting after subparagraph (A) the following:
        "(B)upon the giving of a bond of not less that $5,000 with security approved by, and containing conditions prescribed by, the Secretary or the Attorney General, if the alien--
                "(i)is a national of a noncontiguous country;
                "(ii) has not been admitted or paroled into the United States; and
                "(iii) was apprehended within 100 miles of the international border of the United States or presents a flight risk, as determined by the Secretary of Homeland Security; or"

If you wanted to end "catch and release," wouldn't the law simply declare that no bond shall be available and the alien to be detained until such time as he or she can be returned to the country of origin?  There may be an explanation here that eludes me, but it looks like "catch and release" is simply not outlawed by the new law, only made less automatic.

On to Title II.