A series of amendments to an appropriations bill funding the Department of Homeland Security, adopted in the bill’s markup last week, would devastate the enforcement of U.S. immigration laws.
While much of the bill has good or noncontroversial policies, there are three specific problem areas that would be exacerbated by the amendments approved by the House Appropriations homeland security subcommittee if they were to become law.
1. Breaks the asylum system.
The first problematic amendment is one that would fundamentally broaden the U.S. asylum system, and in so doing, overwhelm U.S. immigration enforcement and courts.
To be granted asylum, an individual must be “unable or unwilling to return to his or her country of nationality because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
For many years, immigration courts have held that victims of spousal domestic violence or gang violence did not generally meet this definition. These cases certainly involve terrible violence, but asylum laws were not designed to protect every victim of violence, but only those who had been persecuted, usually by government authorities, specifically because of their beliefs or core characteristics.
That changed in 2014, when the Board of Immigration Appeals said that such crimes could meet the definition. The result of that decision, together with other lax enforcement policies of the Obama administration, was that asylum claims skyrocketed.
Affirmative asylum claims (made proactively at a U.S. port of entry) doubled between 2014 and 2016, while defensive asylum claims (made after an arrest) increased almost 50 percent from 2015 to 2016.
All of this has overwhelmed U.S. immigration officials and immigration courts.
To curb this growing problem, Attorney General Jeff Sessions overruled the 2014 decision by the Immigration Board, returning the U.S. to its long-standing and proper reading of U.S. asylum law.
This amendment in the appropriation bill, however, would not allow Department of Homeland Security officers to use Sessions’ new directive, thus expanding U.S. asylum law, encouraging more lawlessness at U.S. borders and further undermining the entire immigration system.
2. Formalizes “catch and release.”
Another problematic amendment is one that, rather than fixing the loopholes in U.S. immigration law, actually doubles down on them.
Intertwined with the breaking down of the immigration and asylum systems was a decision by a federal court that said that children who crossed the border illegally with their parents could not be detained for more than 20 days.
The result of this decision was that the administration either has to release the entire family from U.S. custody—which weakens the enforcement of our laws and encourages more illegal immigration with children in tow—or detain the parents and release the child while an asylum or other immigration claim is pending.
The U.S. should not have to choose between enforcing its laws or keeping families together, but that’s the choice the courts had forced upon the executive branch.
Rather than changing the law so that these two choices were not the only two options, this amendment would require that families be kept together, but would not allow them to be detained together or otherwise fix the broken immigration courts and asylum system.
In other words, the amendment locks in “catch and release,” rather than fixing the inherent loopholes that caused this situation in the first place.
3. Defends amnesty rather than long-standing immigration laws.
A final problem can be found in two amendments to the appropriation bill that do not allow Homeland Security to use any funding to enforce immigration laws against anyone who was approved for the Deferred Action for Childhood Arrivals executive amnesty or those who were granted temporary protected status.
These amendments essentially would call for continuation of the protections from deportation that temporary protected status and DACA provide, even as President Donald Trump seeks to end these programs.
So, rather than ending amnesties and lax enforcement, Congress would for the first time be formally defending DACA, as well as supporting the over-broad and not-so-temporary use of temporary protected status.
Congress should fix what prior administrations, laws, and court cases have broken. Unfortunately, this appropriations bill would do the opposite and only make things worse.
