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The Biden administration published a proposed rule yesterday that would allow asylum officers (AOs) to consider criminal and national-security bars to asylum during credible-fear interviews of illegal migrants. Thats curious given that the administration previously reversed a Trump-era rule that would have done the same thing. It's also curiously timed given that it was issued just over a week after a little-reportedincident in which a Jordanian foreign national who recently crossed the southern border into the U.S. and an individual on the U.S. terrorist watch list tried to sneak onto Marine Corps Base Quantico in the dead of night.

Expedited Removal and Credible Fear, in Brief. Undersection 235(b)(1) of the Immigration and Nationality Act (INA), aliens encountered by CBP at the border or ports without documents to enter the United States or with fraudulent entry documents including illegal migrants are subject to expedited removal. That process allows DHS to remove such aliens without placing them into removal proceedings and obtaining a removal order from an immigration judge (IJ).

There is, however, an exception to expedited removal for aliens who request asylum or claim a fear of harm if returned home. Those aliens must be interviewed by asylum officers (AOs) from USCIS, to assess whether their claim of fear is credible. Credible fear is a screening standard used to determine whether the alien may be eligible for asylum.

If an alien receives a positive credible fear determination, the alien is generally placed into removal proceedings before an IJ to apply for asylum. If instead the alien receives a negative credible fear determination, the alien can seek a credible fear review from an IJ or accept removal.

The Bars to Asylum. The asylum statute,section 208 of the INA, is written in an unusual manner.

On the one hand, section 208(a) permits any alien . . . physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival. . .) to apply for asylum. Thats why youll hear proponents claim aliens have a right to seek asylum here.

On the other hand, section 208(b) of the INA bars IJs and AOs from granting asylum to certain alien persecutors and criminals, to alien terrorists and spies who pose a national-security risk to the United States, and to aliens firmly resettled in another country prior to arriving in the United States.

Sure, those aliens can apply for asylum but they cant ever be granted it.

Trump-Era Reforms, and Bidens Initial Response. Prior to the Trump administration, however, AOs werent allowed to consider those bars to asylum during the credible-fear process. In other words, Osama Bin Laden could have showed up at the border and claimed (likely credibly) that hed be persecuted if returned to Saudi Arabia, and the AO would not be allowed to even consider the role he played in multiple attacks on the United States in issuing a positive credible-fear determination.

In two separate regulatory changes in 2020, known colloquially as the Global Asylum Rule and the Global Asylum NPRM, the Trump administration attempted to require AOs to consider those section 208(b) bars during the credible-fear interview process.

In a subsequent March 2022 regulatory change known Asylum Processing IFR, however, the Biden administration again told AOs not to consider the asylum bars during credible fear interviews, explaining:

Requiring asylum officers to broadly apply mandatory bars during credible fear screenings would have made these screenings less efficient, undermining congressional intent that the expedited removal process be truly expeditious, and would further limit DHS's ability to use expedited removal to an extent that is operationally advantageous.

Requiring asylum officers to broadly apply the mandatory bars at credible fear screening would increase credible fear interview and decision times because asylum officers would be expected to devote time to eliciting testimony, conducting analysis, and making decisions about all applicable bars.

At this point, itd be fair to point out that Bidens DHS has largely ditched that critical expedited removal tool Congress gave DHS to quickly remove illegal migrants from the United States.

Of the 137,000-plus illegal entrants apprehended by Border Patrol agents at the Southwest border inMarch, for example, fewer than 25,500 of them18.5 percent of the totalwere subject to expedited removal. Worse, of the nearly 45,000 aliens stopped at the Southwest border ports that month, just 997 of them (2.2 percent) were placed into expedited removal.

That Was Then, This Is Now. The administration, however, has apparently had an epiphany on the efficacy of allowing AOs to consider at least some of those asylum bars during the credible-fear process, which brings me to the latest DHS publication, captioned Application of Certain Mandatory Bars in Fear Screenings.

Unlike the Trump-era changes, it does not require AOs to consider bars, but it does permit them to do so. And, unlike the Trump proposals, the only bars AOs may consider are the ones that relate to persecutors, criminals, and alien terrorists and other national-security risks.

In fact, the rule specifically tells AOs to place aliens who would be barred from receiving asylum because they were firmly resettled elsewhere before coming to the United Statesas well as aliens who could be returned to Canada under the safe-third countryagreement that we have with that countryinto proceedings for further consideration of their asylum claims, assuming the other bars do not apply.

In explaining this change of heart, that document explains:

As the purpose of the [credible fer] screening process is to identify individuals who are ineligible for relief at the earliest stage possible in order to create systematic efficiencies while simultaneously protecting legal rights, ignoring statutory bars to such relief with serious implications, including terrorism and significant criminality, during this process runs counter to the policy goals.

That was as true in March 2022, as it is today, which suggests that something must have happened to prod Bidens DHS in a new direction. Regrettably, we have no idea what that was.

What Did DHS Do with the 169 Border Aliens on Terror Watchlist Nabbed in FY 2023? One clue as to why the administration is considering this shift may be found in a Decemberpost I wrote captioned What Did DHS Do with the 169 Border Aliens on Terror Watchlist Nabbed in FY 2023? Possibly nothingthe continuing implications of the October 2004 Ridge Memo.

As I explained therein, shortly after DHS was established, the departments first secretary, Tom Ridge, issued amemo directed to, among others, the heads of CBP and USCIS, captioned Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings.

In that memo, Ridge warned: While the Act and regulations allow for the use of classified information, the Secretary of the Department has determined, in his discretion, that the Department will use classified information only as a last resort.

If, as it has been under Biden, DHSs key concern is ensuring illegal migrants receive due process rights over and above the ones Congress has provided (and the Constitution requires), the Ridge memo is a sure way to achieve that goal. If, however, DHS is at least equally concerned about protecting the homeland, that extra-statutory restriction will be a serious impediment.

Let me explain. The number of illegal entrants apprehended by Border Patrol who are on theterrorist watchlist has ballooned under the Biden administration, going from 11 total in the four fiscal years between FY 2017 and FY 2020 to 15 in FY 2021, 98 in FY 2022, and 169 in FY 2023. In the first half of FY 2024, 75 illegal Southwest border migrants on the list were apprehended.

Its likely if not probable that the U.S. government has derogatory classified evidence against each of those aliens; the problem is that using such evidence under the restrictions in the Ridge memo would next to impossible, meaning bad people would be able to enter.

If the Biden administration were to now allow AOs to use classified evidence in the credible fear process, this rule would tacitly protect that evidence from disclosure (AOs dont have to share what they have with applicants), but only assuming that the aliens themselves dont request IJ review.

If those aliens do request review, all bets are off, and ICE may have to trust the reviewing IJ to read between the lines of AO determinations or try to offer the court that evidence.

Plainly, with an election less than six months away, the administration wants to avoid an October Surprise involving a terrorist attack along the lines of September 11th carried out by an illegal migrant who passed credible fear and was released into the United States.

Drivers Attempt at Breaching Quantico Gate. While that all might explain why the Biden administration would propose such a shift, it doesnt explain why the administration has decided to push this rule now after ignoring these threats for three-plus years. Which brings me to a little-noticed article in a local Northern Virginia paper.

That article is headlined Exclusive: Drivers Attempt at Breaching Quantico Gate Echoes Deadly Incidents at White House, U.S. Military Bases, and it appeared on May 10 in the Potomac Local News, ajournal founded in 2010 with one mission to help people understand what is happening in their communities in Northern Virginia. (My colleague Todd Bensman has also written about this.)

According to that article, two men appeared at the main gate for Marine Corps Base Quantico early on the morning of Friday, May 3, and told guards that they were contractors for Amazon and were making a delivery to Quantico Towns post officewhich is located inside the military base.

Quantico is a massive facility, and unlike other Marine bases like Camp Lejeune (in North Carolina) and Camp Pendleton (between San Diego and Los Angeles), its in close proximity to the White House and the U.S. Capitol. If you wanted to strike at the heart of the Corps, Quantico is where you would aim.

There werent just random late-night Amazon deliverymen, however, according to the article:

The men did not provide any approved access credentials, and police determined the vehicle had no affiliation with the base, so officers directed the truck to a holding area for standard vetting procedures. One of the military police officers noticed the driver, ignoring the direct instructions of the officers, continued to move the vehicle past the holding area and attempted to accessQuantico, said base spokesman Capt. Micheal Curtis.

Officers then used vehicle denial barriers, or roadblocks that were used to keep out cars, which prevented the two men from traveling further onto the base. The occupants were detained and eventually turned over to ICE, and no one was injured, said Curtis.

Multiple sources report one of the individuals inside the truck is a Jordanian foreign national who recently crossed the southern border into the U.S., and that one of the occupants is on the U.S. terrorist watch list. Quantico did not confirm this information. [Emphasis added.]

Its unclear whether the Jordanian national was also the watchlist alien, or if they were two separate people, but regardless nothing about that account sounds good.

As the article notes, this is just one of several recent accounts of individuals who have attempted to breach secure areas.

In one of thoseincidents, on March 27, a Chinese nationalallegedly here illegallytried to enter the Marine Corps Air Ground Combat Center in Twentynine Palms, Calif.which is literally in the middle of nowheredespite being stopped at the gate. As the Marine Corps Times noted in its reporting on this attempted breach, Chinese nationals have gained access to military bases and other sensitive facilities in the United States around 100 times in recent yearswhich is quite the coincidence.

The System Was Blinking Red. Speaking of September 11th, in itsfinal report, the 9/11 Commission convened to investigate those attacks included achapter captioned The System Was Blinking Red. It begins: As 2001 began, counterterrorism officials were receiving frequent but fragmentary reports about threats. Indeed, there appeared to be possible threats almost everywhere the United States had interestsincluding at home.

Assuming any of the facts in the Potomac Local News article are correctand theres no reason to think they all arentthey should set off some sort of alarm at DHS. Couple that with the other recent incidents and you start to have fragmentary but systemic threats of the sort the commission described.

Thats especially true given that DHSs own Homeland Threat Assessment 2024issued last fallwarns:

Record numbers of migrants traveling from a growing number of countries have been encountered at our borders this fiscal year . . . Terrorists and criminal actors may exploit the elevated flow and increasingly complex security environment to enter the United States. [Emphasis added.]

If you examine the proposed rule closely, you can see how the Biden administration has been dealing with the terrorists and criminals it has encountered at the border up to now. Consider the following:

For those noncitizens in whose cases a negative [credible fear] determination is made due to applicability of a bar, the regulation would prevent them from entering a potentially years-long immigration court process and would conserve those DHS and EOIR resources that would have been required to complete such process to focus on meritorious cases.

According to DOJ, the median completion time for IJ removal hearings involving detained aliens is47 days. Illegal migrants subject to the criminal and terrorist bars to asylum would only face a potentially years-long immigration court process if the administration were ignoring the statutorymandates that require them to be detained and was instead releasing themwhich is what Bidens DHS has apparently been doing up to now.

One last thing. The rule states that the population to which it will apply is likely to be relatively small, as informed by the number of cases with bars that are flagged by USCIS during screenings. If thats true, then why did DHS bother publishing a 15-page rule that runs more than 17,000 words to announce it? Likely because the threat is real, andthis time at least the administration wants to win in court.

DHS doesnt need this rule change to protect the homeland by keeping dangerous migrants outall it must do is to detain them, which the law requires. That said, for Bidens DHS to take the uncharacteristic step of barring asylum claims by illegal migrants who pose terrorist or serious criminal risks now, it must know something its not telling the rest of us.

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Biden's Curiously Timed Effort to Bar Asylum to Terrorist and Criminal Migrants - Immigration Blog

Bulletin writer Annmarie Timmins will be reporting from Eagle Pass, Texas, this week, in collaboration with New Hampshire Public Radio, while shadowing the 15 National Guard soldiers sent by Gov. Chris Sununu to assist with border patrol. You can find her reporting at New Hampshire Bulletin and NHPR, both on air and online.

Gov. Chris Sununu has put nearly $2.3 million into tackling what he calls an illegal immigration crisis on two fronts: $1.4 million for a law enforcement task force along the states 58-mile border with Canada, and $850,000 toward this months deployment of 15 National Guard troops to Eagle Pass, Texas.

Meanwhile, Republican lawmakers and candidates are making illegal immigration a top issue in the State House and along the campaign trail, often making their case with misinformation and untested anecdotal evidence.

Every towns a border town, they say.

Its resonating with Granite State voters. Last month, nearly 43 percent of respondents told the UNH Survey Center they are very or somewhat concerned about undocumented migrants consuming state resources, costing taxpayers money, and committing crimes.

But are those concerns backed up by data and facts? Often no, and in some cases data contradicts illegal immigration claims.

The southern border is well over 2,000 miles from New Hampshire. Heres why the states Republicans are making illegal immigration a top campaign issue here:

Last month, 43 percent of Granite Staters polled by the UNH Survey Center said illegal immigration is a very serious or somewhat serious problem in New Hampshire. That jumped to 83 percent when asked about illegal immigration in the United States.

They cited the taking of resources from Americans, costs to taxpayers, and crime as their top concerns about people living in the country illegally.

Voters hoping to fact-check candidates claims are in for a challenge because theres endless data, and its complicated to decipher.

For example, Republican gubernatorial candidate Chuck Morse of Salem claimed in a campaign email last week that 10 million people have crossed the southern border illegally since President Joe Biden took office. The data contradicts that.

First, U.S. Customs and Border Protection tracks encounters, not people, and does not account for people encountered more than once.

Next, between the start of Bidens term and March, that agency reported 9.64 million encounters nationwide, with 8 million at the southern border. And, those numbers include people who may go on to be granted asylum.

Edward Alden, a senior fellow at the Council on Foreign Relations, said in a media briefing last week that 70 to 80 percent of asylum seekers clear the first hurdle, which is persuading a border patrol agent they have a credible fear of death, torture, or persecution due to their race, religion, or beliefs. About 40 percent of those people are ultimately granted asylum by a court, he said.

Heres what we know about undocumented immigrants in New Hampshire.

The CATO Institute, a public policy research organization, reported in 2020 that data collected by the Texas Department of Public Safety showed that the criminal conviction rate of undocumented people in that state was 45 percent below that of those born in the U.S. In February, the institute published another study that found undocumented immigrants in Texas commit homicide at slightly lower rates than native-born Americans, 2.4 percent compared to 2.8 percent.

Sununu cited human trafficking and terrorism as reasons to beef up security at the southern border. Fentanly overdoses prompted him to send New Hampshire Guard soldiers to Texas, he said. In 2022, fentanyl caused 224 of the states 463 drug overdose deaths and contributed to many more.

You can see exactly what is coming from the southern border and trace right up into virtually every city and town, he told lawmakers in February, when he asked for $850,000 to deploy the troops to Eagle Pass. Its very real. Its impactful, and its affecting families today.

Drug smuggling has also driven the debate in the State House when lawmakers take up bills aimed at tightening immigration enforcement.

What is almost never said is that its mostly Americans, not undocumented migrants, smuggling fentanyl into the country.

In 2022, U.S. Sentencing Commission data showed that Americans accounted for nearly 90 percent of convicted fentanyl drug traffickers.

That same year, 96 percent of fentanyl seizures occurred at official ports of entry, not along migration routes between checkpoints, according to U.S. Customs and Border Protection reports analyzed by the Washington Post. And nearly all those seizures almost 90 percent occurred in California and Texas.

The contradiction between facts and talking points has led Democrats to see Sununus deployment to Texas and Republican claims about undocumented migrants as political stunts.

I think it is part of former President Trump telling Congress not to pass the bipartisan (immigration) bill because its an issue he wants to campaign on, said Sen. Cindy Rosenwald, a Nashua Democrat who voted against Sununus $850,000 request. The border just seems to get dragged in a lot even when you think the subject matter is not about that. So, I think its all part of feeding into former President Trumps desire to beat up President Biden about this.

Sending National Guard soldiers to the Texas border isnt the states only response to the surge in undocumented migrants entering the county.

House and Senate Republicans are backing a bill now that would prohibit New Hampshire communities from adopting so-called sanctuary city policies that prohibit their police from cooperating with federal immigration agencies.

If history is any indication, the bill, which passed the Senate along party lines in March, may have a tougher fight in the House, where Republicans hold only a seven-seat majority. Even in years when Republicans controlled both chambers, lawmakers have rejected nearly a dozen similar bills since 2006.

Senate Bill 563 would require local police to make their best effort to comply with the enforcement of federal immigration law. The bills opponents include not just the ACLU of New Hampshire and church leaders but several police chiefs who worry taking on immigration enforcement would undermine their relationships with immigrant communities.

Sen. Bill Gannon, a Sandown Republican and the bills sponsor, sees it differently. He told a House committee Wednesday that the bill is a necessary public safety tool to identify what he called bad hombres whove committed crimes and are in the country illegally. Its a phrase former President Donald Trump introduced during a 2016 debate.

Im sure most (undocumented immigrants) are looking for a better life, just like all our grandparents, and great grandparents were, he said. And theyre here to raise their families and live the American dream. Unfortunately, theyve not been vetted.

Gannon cited the arrest last year in Rye of a man who had fled Brazil, where hed been convicted of multiple murders.

He was working on a painting crew, eating lunch with everyone, going out to restaurants, and driving through my towns, Gannon said. If you have individual towns (adopting sanctuary city policies), youre putting the other towns at risk.

Gannon cited Keene and Lebanon as two cities that have adopted policies that say local police officers shall not cooperate with the federal authorities.

That is not wholly accurate.

Keene and Lebanon have adopted broad welcoming policies, not sanctuary city policies, said their city managers. Neither policy prohibits the police from cooperating with federal immigration officials in criminal cases.

Weve been accused of harboring terrorists, which is completely untrue, said Lebanon City Manager Shaun Mulholland, a former police chief in Allenstown. If people are wanted for terrorism, which is a crime, we are certainly going to detain them, and were going to turn them over to the federal authorities.

What neither city will do is cooperate with federal immigration officials to enforce civil immigration rules, including detaining someone based solely on their immigration status. It is a civil offense not a crime to be in the country without documentation unless the person is here after being deported.

Lebanons policy also prohibits its police officers from allowing federal immigration authorities to use the station to investigate civil immigration cases. Mulholland, like the police chiefs who penned a letter to senators, said local law enforcement has no legal authority to enforce federal immigration law.

Mulholland said he would have explained that had he heard from Gannon or any other senator who said the city is impeding the enforcement of federal immigration laws.

They never asked, What are you doing there? he said, which is very very frustrating when they make allegations of this nature.

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Republicans have made illegal immigration a top issue in NH sometimes with misinformation New Hampshire Bulletin - New Hampshire Bulletin

When I met Ira in January, her top priority was getting out of Texas before S.B. 4, a new state law that authorizes state forces to take over immigration enforcement, took effect.

Ira currently has a few months remaining on a one-year parolea legal status that offers temporary authorization to live in the United Statesand is working on her asylum application to defend her and her children against deportation. She told me she had escaped Mexico after she took a bullet in her abdomen protecting her daughter from a cartel shooting. Yet Ira, resolute and deeply competent, could not figure out how to leave Texas. She said her savings were drained by the medical bills from the shooting and the journey to the United States. (Slate is not identifying her by her full name because her asylum case is ongoing.)

If you dont have a job, you dont have a shot [leaving]; without a work permit, you dont have a shot at a decent job, she told me. It costs $410 to apply for a work permit in the United States.

Ira is afraid that if she and her six childrenthree of them her own, three her partnersdo not make it out of the state before S.B. 4 is fully implemented, she could be jailed or deported, even though she has a temporary status and a strong asylum claim. When youre Mexican, people think youre illegal, she told me. (Ive translated her interviews from Spanish.) They wont stop you, she paused, pointedlyIm a white naturalized citizenyou have the face of an American, the speech, everything. But imagine me! I follow the law, but they can stop me because I look illegal.

Priscilla Orta, director of Project Corazon, has been advising people to leave Texas if they can. New immigrants may be able to cross the border into Texas, she said, but they just wont leave. Its Hotel California up in here. (I worked with Orta at Project Corazon, which is run by Lawyers for Good Government, in an independent clinic as a law student this winter. I met Ira after she messaged Project Corazon on Facebook, and am currently working on her asylum case.)

Before S.B. 4, people who crossed couldif they fled a credible threat and found legal assistance within one year of arrivingapply for asylum as a defense against deportation. Those who could prove that they had been persecuted had a shot at a permanent status; at the very least, while their cases were pending, they could live and work in the United States.

If S.B. 4 takes hold, these limited rights would be crushed.

S.B. 4 allows state forces to police immigration by creating three new Texas state crimesIllegal Entry, Illegal Reentry, and Refusal to Return to Foreign Nationwith penalties ranging from up to six months in jail for a first offense to up to 20 years in prison for repeat offenses. Those convicted are to be deported by the state of Texas to Mexico after serving their sentence. Unlike current federal immigration law, S.B. 4s state deportation process could apply to people in the middle of their immigration proceedingslike those applying for a family visa because they have a U.S.-citizen child, or soliciting protection from removal because of a high likelihood of post-deportation torture. Someone like Irawhose parole expires in just a couple of monthscould be deported while waiting for a hearing to prove that she will be killed upon return.

S.B. 4 will produce a second radical departure from the status quoone that worries Ira even more. While S.B. 4s author has claimed the law is targeted only at recent arrivals, as written it allows police to question the status of anyone suspected of being a nonU.S. citizen. Immigrants and immigrant rights advocates fear that this will lead to unfettered racial profiling across the state.

Theres something very strange in the S.B. 4 law, Ira told me over a WhatsApp voice message after a flurry of research on the bill. What is a police officer going to base stopping you and asking about your immigration statuswhat are they going to base it on? On my face, on how I look? Do I look like an illegal?

Over the past month, the law has wavered in and out of effect as its worked its way through the courts. S.B. 4 was signed in December of 2023 and blocked by a district judge in Austin. The U.S. Supreme Court temporarily allowed its enforcement in March 2024 despite ongoing challenges in lower courts; hours later, the 5th Circuit issued a stay, blocking the law again while litigation proceeded. S.B. 4 is currently dormant, and advocates expect an expedited ruling on its legality this summer.

But while the law was briefly in effect, it was already destructive to immigrant communities in Texasas Orta put it, the chaos is its own damage. Ira told me that the immigrant families she spoke to at the border are afraid to leave their homes. Theyre scared that police could stop them and arrest themespecially, she told me, people in mixed-status families, who could be deported while their children remain in Texas.

Its unsurprising that families at the border are wary of S.B. 4. Theyve been living through Operation Lone Star, a multibillion-dollar campaign in which Gov. Greg Abbott, citing the failure of federal immigration enforcement, sent thousands of Texas troopers to the border in a sort of on-the-ground rough draft of S.B. 4. The Texas troopers who were mobilized under the operation arrested tens of thousands of brown and Black immigrants putatively for trespassing violations; in reality, the scheme allows Texas troopers to arrest immigrants for the act of crossing into Texas. This catch and jail system allowed for the mass incarceration of immigrants under the auspices of existing state trespassing laws.

Operation Lone Star paints a dark picture of the future that awaits immigrants detained under S.B. 4. Under Operation Lone Star, the state put thousands of immigrants in prison to wait indefinitely for slow, capricious criminal proceedings. Detainees languished in cells for months as they waited for an overwhelmed and ad hoc criminal system to even file charges against them; even if they received release orders or finished serving their trespassing sentence, they were often kept in jail long after.

As detailed in a 50-page complaint filed with the Department of Justice, under Operation Lone Star, detained immigrants often did not receive counsela mandate for indigent criminal detainees. They also faced unchecked racial harassment by state prison officials, and lived with what the Texas Jail Project concluded was an essentially nonexistent medical care system.

The judges in the small courts in charge of Operation Lone Star casescourts accustomed to serving small rural populations and suddenly flooded with thousands of trespassing casesdid not have the capacity to hear the cases. Despite massively constrained resources, three rural county judges were fired in retaliation for authorizing the release of some Operation Lone Star detainees.

Advocates believe that S.B. 4 will significantly increase arrests from Operation Lone Star, which already strained the system well past its breaking point. They also fear that the magistrate courtswhich, under S.B. 4, will replace the county judgesare even more rogue. The Texas magistrate system is the Wild West of adjudication, according to Orta, who has had clients with sudden magistration hearings that took place at 2:30 in the morning. In rural impoverished areas like the [Rio Grande] Valley, Orta explained, magistrates are usually not attorneys, and are not necessarily knowledgeable about immigration law.

In Texas, magistrate courts are tasked with making custody termination (setting a bond or bail) and determining whether there was probable cause for an arrest.What worries advocates the most is that at magistration, those subjected to S.B. 4 will be offered two options: voluntary return to Mexico, or prosecution and detentionand they wont have a lawyer to explain the legal implications of either choice, or consider the best course of action in their individual case.

S.B. 4 seems designed to enshrineand enlargethe reality of Operation Lone Star: people being detained for months or years without understanding the criminal charge that got them there; without talking to a lawyer or learning their rights and due process protections; without medical care, phone access, or protection from racial harassment.

Yet in one critical regard, its even worse. Advocates worry that without knowing their full rights and faced with a lengthy sentence, even people who could face serious harm if they return voluntarily will choose to do so. Even those who stick it out will, after their sentence is served, face state deportation anyway.

This is where things get really sticky. Texas is proposing that it will take over the federal business of deportationbut deportation is done at the federal level rather than the state level for a reason. Its is built on extensive negotiations with other countries, who have to agree to accept and process U.S. deportees. Texas has no such agreements in place; the Mexican government has stated that it would refuse to accept anyone deported by Texan authorities.

Right now, the U.S. government is the one that has agreements and procedures in place to execute deportations, Denisse Molina, an organizer and outreach coordinator at the Texas Civil Rights Project, told me. Its unclear how, exactly, Texas plans to pull off the complex binational deportation process. To this day, [Texas] will not give us exact procedures of how this law is supposed to be enforced, she said.

If Mexico holds firm, its border officials or police could turn back those ordered to cross the bridge. Those who are turned back could, under S.B. 4, face Texas state prosecution for reentry or refusal to comply with the deportation order, which carries a sentence of up to 20 years.

In other words, the act of crossing the border to seek asylum could end in decades of incarceration. Or, as Orta put it, Mexico says no; Texas says 20 years. Twenty years in prison because a country that you cant controlthat youre maybe not a citizen ofwont take you back.

Texas has said that it will prosecute refusal to comply with a deportation order only for those not forced to return by Mexico. Nothing in S.B. 4s text, however, ensures that those turned around by Mexico will not be prosecutedeven inadvertently.

According to Aron Thorn, a senior attorney at the Texas Civil Rights Project working on the S.B. 4 litigation, its impossible to know what will happen without seeing the way that its actually enforced on the ground.Regardless of how Texas enforces their proposed reentry or refusal to return laws, Thorn explained, leaving the United States has a ton of immigration consequences.

Thorn is concerned not only about the potential carceral consequences of state deportations, but the federal law consequences for people Texas pressures into voluntarily departing (or actually deports) from the United Stateswho most likely do not know that they are incurring a lifelong ban on entering the United States. People have a lot to lose, and they dont always realize that, he said.

The threat of S.B. 4 has already transformed immigrant communities in Texas. A Supreme Court ruling in favor of it could change the realities of immigrant communities throughout the nation.

Gabriela Mata, an Austin-based migrant- and Indigenous-rights activist, warned that Abbott is already setting off a Rube Goldberg machinestyle chain reaction into the rest of the country. In fact, at least 7 Republican-controlled states are attempting to pass similar bills. Iowa has already passed a bill that would make it a crime to enter the state after having been deported or denied entrance into the United States.

Texas will not be the last to try to take over immigration policingnor is it the first. S.B. 4 has sparked some comparison with Arizonas S.B. 1070, and for good reason. Bothbills order state police to check the immigrationstatus of people suspected of being undocumented; both attempt to create a state crime targeting undocumented immigrants, and to give police the power to arrest people suspected of being in the United States undocumented.

In 2012, the Supreme Court struck down most of Arizonas S.B. 1070, allowing Arizona police to demand proof of status but prohibiting Arizona from arresting people or creating state crimes for failure to carry papers. In the resulting opinion, Arizona v. United States, the Supreme Court held states cannot take over the federal governments control of immigration, articulating the principle of federalism that has been at the center of lawsuits over S.B. 4.

This precedent is critical, but its not the whole story. As S.B. 4 teeters on the edge of taking effect, its important to recognize that this law, like S.B. 1070, is not just about federal versus state functions. Its about the final erosion of the limited rightsdue process, criminal defense, access to asylum proceedings for those who fear persecution or deaththat immigrants receive in the United States. That these protections are threadbare now does not undermine the massive impact that their removal will have on a community already at the margins, and the massive damage their newly exposed frailty has already caused.

The Supreme Court may well strike down S.B. 4after all, the law directly contradicts its holding in Arizona v. United States. Whatever the Supreme Court decides, however, the damage of S.B. 4 is ongoingand will continue as long as immigrants in Texas face a future in which their basic rights to be free of arbitrary detention and discrimination are not secure.

Most importantly, those currently in Texas without a permanent immigration status are in no position to wait for the vagaries of judicial intervention.

S.B. 4 is a very strong law because many families are going to be broken, and its supposed to be that here in the United States, one protects the unity of the family, Ira told me. What will happen to the children born here once their parents go?

A few weeks ago, Ira mobilized the resources to leave the Texas border and relocate to Houston with her partner and their six children. Its not enoughshe wants to make it to Massachusetts or Illinoisbut shes closer, and while S.B. 4 remains dormant, she has a little time.

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S.B. 4: This Texas immigration law is worse than you think. - Slate

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To Gov. Greg Abbott, the results of his multibillion-dollar border security initiative are clear.

In a recent television interview, Abbott highlighted a decrease in the number of migrants trying to enter the country through the Rio Grande into Eagle Pass after he ordered the state National Guard to seize a 50-acre public park there. He also noted another statistic: Texas has more than two-thirds of the U.S.-Mexico border, but has recently seen fewer illegal crossings than other border states.

We are having a profound impact in stopping the flow of illegal immigration into the state of Texas, Abbott said in the interview, crediting Operation Lone Star, the border security initiative he launched in March 2021.

Federal statistics confirm Abbotts claim that overall more migrants were encountered by Border Patrol agents outside of Texas each of the first three months of this year. During the 2023 fiscal year, Texas on average accounted for roughly 59% of migrant encounters along the southwest border. During the first half of the 2024 fiscal year, which began in October, Texas has on average accounted for 43% of migrant encounters.

However immigration and foreign policy experts say the reasons driving the recent shift and any migration patterns changes in general are much more complicated. And they said the numbers are likely to change again if history offers any clues.

He can, with no evidence and no real deep analysis, claim all the credit he wants to and good for him, said Tony Payan, director of the Center for the United States and Mexico at the Baker Institute, a nonpartisan policy research organization based at Rice University in Houston. But those of us who have been looking at immigration for a long time would probably be a lot more skeptical.

The number of migrants trying to enter the country illegally in between legal ports of entry reached historic levels in the wake of the coronavirus pandemic. U.S. Customs and Border Protection reported a record 2.4 million migrant apprehensions at the nations southwestern border for the fiscal year that ended in September 2022.

Texas shares about 1,250 miles of border with Mexico and is home to five of the nine Border Patrol sectors along the southern border the El Paso Sector also includes New Mexicos 180 miles of the border. Since at least 2019, Border Patrol agents in the Texas sectors have recorded more encounters with migrants each month than the rest of the sectors.

Until last fall.

In November, non-Texas sectors recorded roughly 104,000 migrant encounters compared to about 87,000 recorded in Texas five sectors. Texas saw more encounters in December than the other states, but the trend flipped back again in January, when Border Patrol agents in Texas encountered fewer migrants than agents elsewhere along the southern border, according to Border Patrol figures.

The biggest decrease in encounters occurred in the Del Rio sector, which includes Eagle Pass, where agents recorded more than 70,000 migrant encounters in December compared to fewer than 20,000 in each of the first months of 2024, according to Border Patrol figures. Meanwhile, the San Diego and Tucson sectors have recorded consistent increases since last summer until recent tiny dips.

The recent trend comes three years after Abbott began flooding the Texas-Mexico border with state troopers and National Guard soldiers through Operation Lone Star.

Since then, the state has allocated more than $11 billion of taxpayer money for Operation Lone Star, said gubernatorial spokesperson Andrew Mahaleris. That money has also paid for the transporting of more than 100,000 migrants to cities like New York and Chicago, placing 70,000 rolls of concertina wire along the border, and beginning construction on a military base that may reportedly cost more than $400 million.

The vast majority of the United States' southern border is in Texas, and because of Texas' efforts to secure the border, more migrants are moving west to illegally cross the border into other states, Mahaleris said in a statement. Until President Biden steps up and does his job to secure the border, Texas will continue utilizing every tool and strategy to respond to this Biden-made crisis.

Immigration experts say its difficult to measure the impact of Texas border buildup because its just one piece of a complex, global phenomenon migration is increasing around the world. In countries like Honduras and Venezuela, poverty, lack of jobs, political instability and organized crime have pushed people toward the U.S. to seek a better life. That often means paying smugglers and cartels who often change their smuggling routes.

Weve always treated the border as a simple line on a map, but its more than that its an ecosystem, said Victor M. Manjarrez Jr., who worked for the Border Patrol for 22 years and retired as the Tucson Sector chief in 2011. An ecosystem that is impacted by variables very close and very far, and very far is also outside the U.S., right? Its not only Mexico, but youre talking about other countries.

Mexico has in recent months increased its enforcement efforts by arresting or detaining more migrants from other countries, said Adam Isacson, director for defense oversight at the Washington Office on Latin America, an advocacy group for human rights in the Americas. But Mexican statistics indicate that the country is not deporting people and recent court decisions have ruled that migrants cant be detained for more than 36 hours for the most part, he said.

Theyre just massively putting people on buses, it seems, and sending them to the southern part of the country and the central part and almost anywhere else thats not near the [U.S.] border in order to try to depressurize the border, Isacson said. Its very confusing and murky but they are stopping a lot of people.

Its also possible that Senate Bill 4, Texas new immigration law that would let state police arrest people suspected of entering the country illegally, is causing a wait and see moment that typically accompanies any new immigration policy, Isacson said. The law remains locked in unresolved court challenges and is not currently in effect.

If the courts allow SB 4 to go forward, the numbers might drop even more, Isacson said. But then they will come back. Migrants will realize that ultimately its just another speed bump.

Some immigration policy experts credit the Biden administration for the recent decrease, pointing to a winter visit from top U.S. officials including Secretary of State Antony Blinken and Secretary of Homeland Security Alejandro Mayorkas to Mexico to discuss immigration with their Mexican counterparts. Top American and Mexican officials have touted agreements from such closed-door meetings.

Immigration experts pointed out that apprehensions at the U.S.-Mexico border dropped during the first three months of the year a period that would typically see an increase as migrants try to make the journey before the summer heat arrives.

Another major change last year was the expiration of Title 42, a policy launched by the Trump administration at the beginning of the COVID-19 pandemic that allowed U.S. border officials to quickly remove migrants to Mexico without allowing them to claim asylum.

Many of those migrants would try crossing again and each time they were apprehended counted as an encounter, which pushed up the number of encounters, said Guadalupe Correa-Cabrera, a professor at George Mason University who has researched the border and U.S.-Mexico relations.

Migrant encounters decreased immediately after the end of Title 42, according to Border Patrol data, but increased again near the end of 2023.

How are we going to attribute the increase or decrease to either Border Patrol or to Operation Lone Star? Correa-Cabrera said. Its difficult. Its impossible to know that.

Disclosure: Rice University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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Texas has spent $11 billion on border security. Is it working? - The Texas Tribune

By Ted Hesson

WASHINGTON (Reuters) -The White House is weighing ways to provide temporary legal status and work permits to immigrants in the U.S. illegally who are married to American citizens, three sources familiar with the matter said on Monday, a move that could energize some Democrats ahead of the November elections.

Democratic lawmakers and advocacy groups have pressured President Joe Biden to take steps to protect immigrants in the country illegally as Biden simultaneously considers executive actions to reduce illegal border crossings.

Immigration has emerged as a top voter concern, especially among Republicans ahead of the Nov. 5 election pitting Biden, a Democrat, against his Republican predecessor, Donald Trump. Trump has said Biden's less restrictive policies have led to a rise in illegal immigration.

The White House in recent months has considered the possibility of executive actions to block migrants at the U.S.-Mexico border if crossings reach a certain threshold, sparking criticism from some Democrats and advocates.

The Biden administration also has examined the possible use of "parole in place" for spouses of U.S. citizens, the sources said, requesting anonymity to discuss internal deliberations.

The temporary status would provide access to work permits and potentially a path to citizenship. No actions are imminent or finalized, the sources said.

A White House spokesperson said the administration "is constantly evaluating possible policy options" but declined to confirm discussions around specific actions.

"The administration remains committed to ensuring those who are eligible for relief can receive it quickly and to building an immigration system that is fairer and more humane," the spokesperson said.

The Wall Street Journal first reported the possible moves.

An estimated 1.1 million immigrants in the U.S. illegally are married to U.S. citizens, according to data by advocacy organization FWD.us.

A group of 86 Democrats sent a letter to Biden and Homeland Security Secretary Alejandro Mayorkas last year urging them to protect spouses of U.S. citizens and create a family reunification process for those outside the country.

(Reporting by Ted Hesson in Washington; Editing by Richard Chang and Aurora Ellis)

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White House weighs immigration relief for spouses of US citizens - AOL