On Sunday, the New York Times ran an analysis of the dueling and yet fairly similar immigration proposals advanced by the two leading candidates for the Republican presidential nomination, former President Donald Trump and current Florida Gov. Ron DeSantis. The headline read With Unrealistic Immigration Proposals, DeSantis and Trump Try to Outdo Each Other, but none of the proposals advanced by either candidate appears to be anything other than what the law demands. Of course, it would help if the Gray Lady didnt wildly underestimate Bidens border releases.
Republicans Pounce. Although it references Trump, the piece is actually an attempted takedown of DeSantis, and you can get a sense of where its headed right from the jump:
As a presidential candidate, Gov. Ron DeSantis of Florida has said he would authorize the use of deadly force against people crossing the border, seek to end the practice of birthright citizenship and send the military to strike against drug cartels inside Mexico, a key ally of the United States, even without the permission of its government.
Those positions put him on the hard right among the Republicans running for president, many of whom are tapping into deep anger among G.O.P. primary voters over immigration.
Now, Mr. DeSantis, who often tries to stoke outrage with his border policies, has unveiled another extreme position: deporting all undocumented immigrants who crossed the border during the Biden administration. [Emphasis added.]
My colleague Mark Krikorian often alludes to the Republicans pounce trope, best defined by whats not commonly thought of as a hotbed of right-wing thought, Urban Dictionary, as follows:
A headline in a newspaper or other article that describes Republicans (or other right-leaning individuals) attacking a Democrat (or other left-leaning individual) when that Democrat commits a misdeed. Always written by a reporter with left-wing political views, it will attempt to frame the Republicans as overzealous, and will either downplay, ignore, or excuse the Democrat's misdeed. Commonly done by the New York Times or Washington Post, it is often viewed as a sign of the bias within the media.
Thats a decidedly accurate take in this instance, beginning with the use of the descriptor hard right. How often have you heard reference to the hard left? Rarely, I am guessing; the preferred term in the media is progressive wing. The same goes for stoke outrage, the likely cognate for which is stir up the base or promote liberal values, and deep anger, the opposite of which is strongly held beliefs.
Extreme Position. Of course, those are basically procedural arguments, and every procedural argument is self-serving. The idea that a would-be president is promoting an extreme position by proposing to deport all undocumented immigrants who crossed the border during the Biden administration, on the other hand, is hardly extreme at all.
In fact, its the expressed policy of the Biden administration.
In September 2021, DHS Secretary Alejandro Mayorkas issued a memo captioned Guidelines for the Enforcement of Civil Immigration Law, which directs how ICE officers and attorneys must take certain enforcement actions, including investigating, questioning, arresting, detaining, prosecuting, and removing illegal aliens (undocumented immigrants) in the United States.
Those guidelines identify just three classes of aliens as priorities for such immigration enforcement actions: (1) terrorists and spies (threats to national security); (2) aliens who engaged in serious criminal conduct (threats to public safety); and (3) a group denominated as threats to border security, that is aliens:
(a) apprehended at the border or port of entry while attempting to unlawfully enter the United States; or (b) apprehended in the United States after unlawfully entering after November 1, 2020.
Not only are aliens apprehended in the United States after unlawfully entering after November 1, 2020 the same as undocumented immigrants who crossed the border during the Biden administration, but the former class is more expansive, stretching back to days before the 2020 election.
Its curious the Times never mentions this fact in its article, instead focusing exclusively on the logistical difficulties inherent in actually removing such a large group of aliens from the United States:
Conducting so many deportations would require Mr. DeSantis to hire more Immigration and Customs Enforcement officers, authorize widespread raids into immigrant communities, significantly expand immigration detention space to meet national standards and substantially grow the fleet of airplanes used for deportations. Billions more dollars would need to be spent on bolstering immigration courts to adjudicate cases within months instead of years. Currently, some migrants who have recently arrived in the United States have been given court dates a decade from now because the immigration court backlog is so large.
Part of that is accurate, but most isnt.
ICE Officers. Plainly, DeSantis proposal would require the hiring of more ICE officers, but the agencys Enforcement and Removal Operations (ERO) branch the component responsible for most removals has been underfunded for years and is strained to the point of breaking in dealing the millions of new cases Bidens border surge has added to its backlog.
And yet, for some reason (assuming the administrations latest budget request is correct), ICE ERO lost 547 positions between FY 2022 (8,258) and FY 2023 (7,711), while the White House is only asking for 518 new positions in its FY 2024 budget 29 fewer than it had in FY 2022.
Authorize Widespread Raids. Its unclear to me how, exactly, the Times believes ICE conducts its business, but the widespread raid part is a head-scratcher.
Plainly, if the agency has reason to believe that a large number of removable aliens are at a given address or a specific worksite, theyd likely send more than a couple of officers to check it out. Yet, the papers depiction smacks of tens to hundreds of ERO officers all converging on neighborhoods across the Republic with guns drawn and sirens blaring.
Thats not how it works, because of course ICE would have no reason to believe that all the residents in a given area are aliens who entered illegally under the Biden administration. And, given the fact that the administration has given those migrants free rein to roam far and wide across the country, they likely would not be concentrated in one place.
Any such proposal would require those officers to locate specific aliens in specific places and go and pick them up, or, even better, to respond to local authorities who have encountered them. Thats not much help in so-called sanctuary cities that eschew local cooperation with immigration authorities, but in states like Texas and DeSantis own Florida, where the governments are more simpatico with ICE enforcement, it wont be that difficult.
That said, the Immigration and Nationality Act (INA) itself provides some helpful options the Times never even considers.
Section 262 of the INA requires all aliens in the United States to register their presence here within 30 days of arrival (backed up by a fine and/or prison sentence), while section 265 of the INA mandates that such aliens provide DHS with a change of address within 10 days of moving (with a lesser fine and/or a shorter prison sentence for non-compliance).
As an added authority, section 263(b) of the INA permits DHS to prescribe special forms and regulations for the registration of any class of aliens not lawfully admitted to the United States for permanent residence like aliens released under the Biden administration at the Southwest border.
Once a significant number are required to register, more than a few will decide theyve made enough money here and simply go home. That might sound crazy, but as my colleague, Jessica Vaughan explained in 2006:
Voluntary compliance works faster and is cheaper than a borders-only approach to immigration law enforcement. For example, under the controversial [National Security Entry-Exit Registration System (NSEERS)] program launched after 9/11, DHS removed roughly 1,500 illegally-resident Pakistanis; over the same time period, in response to the registration requirements, about 15,000 illegal Pakistani immigrants left the country on their own.
Why was NSEERS controversial? Because it applied only to specific nationals of certain Middle East countries with Muslim majorities. A similar program that applied only to illegal entrants released under the Biden administration at the Southwest border would suffer no similar criticism because: (1) most of those aliens are nationals of Western Hemisphere countries; (2) none of those countries have Muslim majorities; and (3) it would have a demonstrably legitimate purpose.
And I havent even mentioned the most powerful tool DeSantis or Trump could bring to bear: a mandatory E-Verify program. As DHS explains:
E-Verify, authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), is a web-based system through which employers electronically confirm the employment eligibility of their employees.
In the E-Verify process, employers create cases based on information taken from an employees Form I-9, Employment Eligibility Verification. E-Verify then electronically compares that information to records available to [DHS] and the Social Security Administration (SSA). The employer usually receives a response within a few seconds either confirming the employees employment eligibility or indicating that the employee needs to take further action to complete the case.
The I-9 employment-eligibility verification process all employers must comply with is already required by section 274A of the INA and has been since 1986. The problem is there was no internet in 1986 (compliance has been paper-based ever since), but the president could potentially mandate compliance with E-Verify by regulation or even executive order.
Would mandatory E-Verify encourage Bidens border migrants to leave? They almost definitely would.
In a March 2016 study, Do State Work Eligibility Verification Laws Reduce Unauthorized Immigration, researchers Pia M. Orrenius and Madeline Zavodny determined that having an E-Verify law reduces the number of less-educated prime-age immigrants from Mexico and Central America immigrants who are likely to be unauthorized living in a state. Thats the majority of Bidens migrants.
The duo examined the effect of the adoption of E-Verify laws on the illegal alien population, and focused their study on Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, and Utah all states that had adopted E-Verify policies.
Of course, workers who couldnt find employment in a given state could always move to one that didnt mandate E-Verify, but if that process were required in every state, where would they go? Assuming, as is evident from most media interviews conducted with Bidens border migrants, that the majority have come here to work, if they could not work, theyd leave.
Significantly Expand Immigration Detention Space. Plainly, to the degree that any Trump or DeSantis plan relied on ICE ERO officers arresting migrants who entered illegally under Biden, more detention space would be required. The good news is theres plenty of detention beds to go around.
I was an immigration judge at the York Immigration Court in York, Pa., which itself is not a hot destination for most migrants released at the Southwest border. The York County Prison, however, had lots of extra beds, which it rented out to ICE for aliens it had detained. That was a win-win for both ICE (it didnt have to build new facilities) and the county (it received recompense and a pretty good premium for room and board).
Some of those aliens would remain for extended periods of time, but only the ones who werent clearly removable or who had legitimate claims for relief (like asylum). The rest cleared out pretty quickly, and at present the median completion time for a detained case in immigration court is just 41 days.
Even thats on the high-side by historical standards, because as recently as FY 2012 (during the Obama-Biden administration), the median completion time for detained cases was just over two weeks. Why the difference? Because in FY 2012, ICE actually detained illegal entrants, few of whom had or have any right to be here, which is not the norm today.
So yes, more detention space would be required if a President DeSantis decided to actually enforce the policies the Biden administration currently has in place. But not as much as the Times suggests.
Substantially Grow the Fleet of Airplanes Used for Deportations. As for the Times contention that DeSantis proposed scheme would require DHS to substantially grow the fleet of airplanes used for deportations, my first response is, Why bother?
The department may prefer to use its own planes to conduct removals, but theres no need for it to do so. In fact, when I was an associate general counsel at the then-INS enforcement law division, nearly every alien (some of whom were seriously bad people) was just placed on a commercial airliner and sent home.
Even today, the ICE website states that the agency conducts removals through chartered flights, commercial airlines and ground transportation, for both escorted and unescorted removals. For countries not bordering the U.S., removals require ICE air charter or commercial flights (emphasis added). I dont even see the words DHS Air in that excerpt.
Even if ICE were to skip bookings on any one of the hundreds of commercial flights that depart for foreign destinations every day, the charter option is pretty economical, according to the agency:
A daily scheduled charter flight average cost is $8,577 per flight hour. A special high-risk charter flight average cost is between $6,929 to $26,795 per flight hour, depending on aircraft requirements. These rates cover the cost of not only the aircraft and fuel, but also the flight crew, security personnel, an onboard medical professional and all associated aviation handling and overflight fees.
Thats per flight, not per alien. The aircraft featured therein, registration number N279AD, is a Boeing 737-4, which can carry between 146 and 189 passengers. That works out to $183 per flight hour on the high side to just $45 per flight hour on the low a bargain compared to the $12 billion New York City expects to pay for its 100,000 migrants ($120,000 per alien).
How Many Alien Releases? At least 2,390,584. Given that the Times deliberately attempts to make the challenges of removing the migrants who have entered the United States under Biden seem daunting, its strange that it also understates the number of aliens who have come illegally on the current administrations watch: at least 1.6 million released since January 2021 plus about 1.5 million others have entered the country illegally without being detained, that is, got-aways.
In reality, as I recently explained, the Biden administration has released at least 2,390,584 illegal aliens at the Southwest border into the United States, though the actual number is much higher, given that Bidens DHS not only refuses to release the official total, but is actually hiding its port release figures and the number of aliens transferred by CBP at the border to ICE who were released by the latter agency.
Since February 2021 Bidens first full month in office CBP has encountered more than 3.57 million aliens at the Southwest border who were processed under the INA in lieu of being expelled under Title 42. I have been told anecdotally but by people who would know that all of them have been released into the country. If thats not true, the administration is free to correct me by releasing the actual total.
You can add to that figure nearly 1.6 million known got-aways since Biden took office, though then-Border Patrol Chief Raul Ortiz told Congress back in March that the actual number of got aways could be 10 to 20 percent higher, which adds anywhere between 160,000 to 320,000 to the total.
That gets you, at the high end, to 5.47 million new arrivals since Biden became president, and when you lump in the 263,000 inadmissible aliens waived in through the Southwest border ports who used the CBP One app to preschedule their illegal entries and the 211,000 Cubans, Haitians, Nicaraguans, and Venezuelans who flew into U.S. airports using Bidens illegal CHNV parole processes, youre pretty close to the six or seven million figure DeSantis referenced during a recent speech that the Times contended was greatly overestimated.
Again, the burden should be on the administration to disclose how many aliens have entered illegally on its watch, not on the governor of Florida, who is essentially a private citizen for purposes of this analysis. Nothing in the Times article suggests the writers asked DHS for the official figure, however.
If Removing Aliens Is So Hard, Why Does Biden Keep Letting Migrants In? The elephant in the room or more specifically the donkey in that article is why, if removing aliens is so hard, the Biden administration keeps allowing tens of thousands of them per month in.
That question applies not only to the 100,000-plus aliens Border Patrol released after apprehension in August at the Southwest border, but also to the 45,400 illegal entrants who were processed using Bidens CBP One port app interview scheme in August and about 30,000 others who came in on CHNV parole.
Note that Texas is challenging those CHNV parole processes in Texas v. DHS, in part, because Biden has no plan whatsoever to remove them. That actually makes the Times point, but the paper never even mentions either that fact or the states litigation.
None of this is to second-guess the Times. It wanted a piece attacking DeSantis and Trumps plans to remove the millions of illegal aliens Joe Biden has allowed into the United States at the border and got it. Respectfully, however, theres a lot more news thats fit to print about Bidens border policies, and it would have informed the public discourse had the Times simply included it.
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NYT: Trump, DeSantis Have 'Unrealistic Immigration Proposals' - Immigration Blog