We have the first legislation from the new Republican House of Representatives to deal with the crisis at the border and the deliberate refusal of the Biden Regime to enforce immigration at the border. It is titled The Border Safety And Security Act, proposed by a patriot, Representative Chip Roy of Texas. It is a brief three-page bill. However, it appears Representative Roy does not really understand immigration law or the manner in which the Biden Regime has conducted the ongoing administrative amnesty. Not to say this is not a bill that could work, it could, but it relies on kritarchs to force the Secretary of the Department of Homeland Security (DHS) to perform his duties. It also relies on inadequate language to compel adherence to the bill and other immigration laws.
First, the bill.
Rep. Chip Roy, R-Texas, is introducing a bill that would block illegal immigrants from entering into the U.S. until the border was under “operational control” — just as the House Republican caucus is eyeing a number of legislative and oversight moves related to the besieged border now they have the gavel.
Roy re-introduced this week “The Border Safety and Security Act” which was first introduced last year and would authorize the Homeland Security Secretary to suspend the entry of illegal immigrants into the United States, if he determines it “necessary in order to achieve operational control” of the border.
The legislation would also require the suspension of entry of illegal immigrants if the Department of Homeland Security cannot either detain them or place them into a program like the Trump-era Migrant Protection Protocols (MPP), which required migrants to remain in Mexico while their hearings were underway. The bill currently has 49 co-sponsors in the House.[ Rep. Roy Introduces Bill To Block Illegal Immigrants As House GOP Fires Up Border Push, by Adam Shaw and Peter Kasperowicz, Fox News/Yahoo News, January 12, 2023]
A major concern is the language of the bill that gives the discretion to the DHS Secretary. Why? If the purpose of the bill is to force Secretary Alexandro Mayorkas to act to control the border and prevent entry of illegal aliens, why give him the discretion to act or not? From the bill:
Not withstanding any other provision of law, if the Secretary of Homeland Security determines, in his discretion, that the suspension of the entry of covered aliens at an international land or maritime border of the United States is necessary in order to achieve operational control over such border, the Secretary may prohibit, in whole or in part, the entry of covered aliens at such border for such period of time as the Secretary determines is necessary for such purpose
The Border Safety and Security Act, docs.house.gov, January 2, 2023
Why allow Mayorkas the discretion to deter if the suspension of entry of “covered aliens” is necessary? Why not instead prohibit the release of any alien who enters the United States without inspection, i.e. illegally? Why make any decision optional? Additionally, why condition the entry of illegal aliens on having custody available? There is no reason for that. Custody by its very nature is expensive and scarce, ever dependent on appropriations from Congress. That is an easy out for any mandatory detention language in the bill.
The bill goes on to authorize States Attorneys General to file lawsuits in Federal courts if the Secretary fails to take action that is otherwise described as discretionary in the bill, though there is language requiring action to suspend entry of those mysterious “covered aliens.” Why have two provisions, one making action discretionary and the other requiring action? Then why wait for a lawsuit and a kritarch to take action against the Secretary, or not as the kritarch decides. This is a weak response and unnecessarily complicated. Why involve States Attorneys General when you can mandate executive action without them.
Then there is the use of word “shall.” The Immigration and Nationality Act (INA), as amended, is filled with “shalls” which Presidents have ignored with no consequences. In fact, the Biden Regime is arguing in court that he can legally and constitutionally ignore any statutory language mandating any action in immigration enforcement actions. The argument is that since immigration touches on international relations, the President is not bound by statutory language requiring action since deporting an illegal alien might affect foreign affairs. The Biden Regime is also claiming that the President has the prosecutorial discretion to take action or not, reminiscent of the Obama Regime rationalization for Deferred Action For Childhood Arrivals (DACA).
Then why the strange language concerning “covered aliens?” Why not just identify the “covered aliens” as what they are, illegal aliens and then define the term illegal aliens? That would be simpler. Why create a new class of aliens when we already know what they are, illegal aliens?
Instead, Representative Roy should reintroduce the bill with language dealing with illegal aliens. First, define the term “illegal alien” for this bill and for Federal law in general. Define an illegal alien in these general categories: any alien who enters the United States without inspection and admission or parole in violation of Title 8 United States Code Section 1325, Improper Entry By An Alien, any alien who having been inspected and admitted or parole, used fraud, misleading statements, or false statements, to gain admission, or any alien who having been inspected and admitted, paroled, or adjusted status, violates any of the terms and conditions of admission.
Then prohibit the parole or release into the United States, other than into the physical custody of the United States, require that any alien who enters without inspection be immediately removed from the United States to the nation from which they entered without review by any Federal court or the Executive Office For Immigration Review (EOIR). Effectively this would require that any alien who enters illegally from Mexico or Canada to be removed there, respectively. It would also require that any alien who enters illegally over the maritime border to be removed to which ever nation they came from, such as Cuba or Haiti. This is even better than Remain In Mexico, as it just mandates removal all illegal entrants.
Additional language would prohibit the parole of any alien who appears at a Port-of-Entry (POE) from being paroled, deferred, or released; only admitted in the immigrant or non-immigrant visa category for which the alien has a valid unexpired Immigrant Visa (IV), Non-Immigrant Visa (NIV), eligibility for the Visa Waiver Program (VWP), or is a returning Lawful Permanent Resident (LPR) who has not abandoned his or her residency by being outside the United States for 365 days or more.
Furthermore, the bill should revoke the previous parole or previous release of any alien who entered the United States without inspection or was paroled at a POE with the intent of apply for any relief such as asylum, adjustment of status, or Withholding Of Removal, perhaps going back to the Obama Children’s Jihad of 2014.
The advantage of prohibiting actions by DHS instead of mandating action, such as with “shall,”, is that while the Executive can make an argument that he cannot be compelled to do anything by Congress as the President is independent and co-equal branch of government, having the discretion whether to take an action or not as a Constitutional officer. If the President is prohibited from taking an act, that act cannot be taken, especially in the area of immigration and naturalization, as that is Title I authority in the Constitution. But I would include language making failure to take action a felony offense, punishable by 10 years in prison for the President, the Secretary, or any other inferior officer to fail to take action to enforce this bill.
Representative Roy’s legislation may work, but relying on Attorney General Ken Paxton, no matter how great he is, and an as yet unnamed Federal judge in Texas is not a good idea. Immigration is a Federal issue, and the legislation should be forced down the throat of Biden and Mayorkas, hoping they choke on it, politically, of course.
