The bill proposed by House Republicans (H.R. 5230), not only fails to address the root causes of the border surge or hold President Obama accountable, it actually weakens current law. While distracting from Obama’s DACA and promises of amnesty with statutory minutia over the 2008 anti-trafficking law, the House bill actually makes matters worse and voids out the entire purpose of modifying that law:
1) No Mention of DACA Amnesty: This is not only the cause of the border surge, it is an ongoing threat as Obama openly promises to grant amnesty for 5-6 million more people. The glaring omission and the fear to even mention it will not go unnoticed by Obama.
2) Only Addresses UACs: Republicans have completely bought into the messaging from the White House that this crisis is all about unaccompanied children. Yet, UACs only account for 20% of the recent surge in border crossings. This bill does nothing to address the catch and release policies of the other 80%.
3) Does Not End Catch and Release: Although the bill repeals Section 235(a) of the William Wilberforce Trafficking law and places UACs from non-contiguous countries into judicial proceedings, nowhere does it prevent HHS from releasing them into custody of relatives (often illegal immigrants) during the myriad of delays in proceedings subject to the discretion of the judge. So even though they are selling this bill as a means of expedited removal, as it requires adjudication within 7 days and a decision within 72 hours thereafter, that is only relevant to those who bother to attend or show up to subsequent hearings. Without ending catch and release, almost none of the UACs will ever appear before a court.
4) Does Not Close Asylum Loophole: Even those few who appear before the court and are ruled inadmissible to the U.S. can have a chance to apply for asylum with a claim of “credible fear.” [page 21] As we already know, there is an unlimited supply of pro bono immigration attorneys who will coach them to claim persecution. A whopping 92% of credible fear applicants have been approved in recent years. Once their claim is accepted, they will be sent back to HHS and likely released into custody of relatives. This bill actually insults our intelligence and addresses the asylum loophole in Section 106….only for drug smugglers! Everyone else is explicitly granted the opportunity to seek asylum.
5) Makes UAC Crisis Worse with De Facto Amnesty: Section 103 [page 27] of this bill mimics the provision in Senator Cornyn’s bill, which actually makes it easier for recent arrivals to thwart deportation than under current law. It allows all those who received a Notice to Appear since January 2013 to get a second bite at the apple. Their notice will be expunged and they will have another chance to apply for admission, even if they ignored previous orders to appear. The immigration judge will then have sole discretion to grant amnesty as long as “the granting of such motion would not be manifestly unjust.” [Section 103(c)(3)]
6) Actually liberalizes law on Mexican UACs: Changing the 2008 Wilberforce law and equalizing treatment of UACs from Mexico with those from Central America is a double-edged sword. While making the laws governing those from Central America stricter (although other provisions will void that out, as noted above), this bill will liberalize the laws governing Mexican UACs. Under current law, they can be returned to Mexico immediately [8 U.S.C. §1232(a)(2)(A)]. The House bill will place them into the same judicial process as other UACs, granting them the opportunity to be released and/or to apply for asylum.
7) Keeps HHS Throughout Entire Process: One of the purposes of repealing the Wilberforce law governing UACs from Central America was so that we can prevent HHS from helping integrate them into the country. This bill keeps them in the custody of HHS throughout the entire judicial process and never mandates “detention” in a legal sense.
8) No Mission for National Guard: While the bill appropriates funds for any usage of the National Guard at or near the border, it never explicitly calls for activating the military, nor does it mandate how Obama uses the soldiers. Barring specific directions, Obama can and will use them for his purposes.
9) Transferring UACs to Military Bases: Instead of barring the use of military bases to house the UACs, Section 302 of the bill merely expresses “ the sense of Congress” that the administration notify them before doing so. Ironically, with regards to DACA, the House was too scared to even express their sense that the president should no longer grant administrative amnesties.
10) No Fence: Any discussion of dealing with the border crisis without mandating completion of the Secure Fence Act – the only proven method – is worthless.