Biden’s 5 Favorite Fudges on Immigration Law: The BorderLine

Simon Hankinson

6 months ago

Earlier this week, I explained “parole in place,” President Joe Biden’s latest attempt to grant a back-door amnesty. Biden isn’t the first president to use flimsy pretexts and dodgy interpretations of law to force immigration policy in the absence of legal authority, but he is by far the most reckless.

Here are my Five Favorite Fudges, a list of the top jerry-rigged workarounds currently used to grant amnesty or benefits to illegal immigrants that never were envisioned by Congress.

1. Parole

“Parole in place” was recently in the news, so let’s start here.

Congress intended immigration parole to be used by the secretary of the Department of Homeland Security to allow a few hundred migrants a year into the country, in exceptional circumstances. But since 2021, Biden has used it to create a string of “McVisa” programs benefiting Afghans, then Ukrainians, and then Cubans, Haitians, Nicaraguans, and Venezuelans.

Biden lets 1,450 aliens per day book an appointment on the CBP One app to show up at a port of entry and be paroled in. He paroles family members from favored countries so they can cut the line and wait here instead of at home.

“Parole in place” is open to illegal aliens married to U.S. citizens for at least 10 years. It allows these aliens to avoid the penalties prescribed for living here illegally (a three- or 10-year bar to reentering the U.S.) before they may apply for a green card through marriage.

Those penalties aren’t “bureaucratic hurdles,” as The Washington Post claims, but a deliberate attempt by Congress to make it harder for migrants to enter and live in the U.S. illegally with impunity.

Parole in place is unlawful and unfair, and will encourage yet more illegal immigration, fraud, and access to already-stretched federal and state benefits.

2. Deferred Action on Childhood Arrivals

In 2011, President Barack Obama said that he could not “just bypass Congress and change the law myself …” Nonetheless, in 2012, his homeland security secretary created the Deferred Action for Childhood Arrivals program, or DACA, by writing a memo.

DACA now protects roughly 600,000 beneficiaries from deportation, while letting them work and access federal benefits. The qualification bar is low, though many beneficiaries have lost their eligibility due to criminal convictions or gang affiliation.

One Arizona study found that illegal aliens eligible for DACA made up 2% of that state’s population, but 8% of its prison population.

In 2017, the Trump administration tried to end the Deferred Action for Childhood Arrivals, but the courts stopped him. In 2018, several states sued the government, arguing that Obama didn’t have legal authority to create DACA.

In 2020, the Supreme Court ruled that President Donald Trump couldn’t end DACA, due to procedural missteps, but didn’t rule the program legal.

Fourteen years after it was conjured into existence, DACA remains in litigation.

No matter how sympathetic some of the so-called Dreamers may be, DACA is unconstitutional administrative overreach. It encourages more illegal immigration in anticipation of future amnesties.

Since the creation of DACA, the number of unaccompanied children caught entering the country from Mexico has risen dramatically, from around 20,000 in 2012 to over 140,000 in 2022. Last year, over 113,000 unaccompanied children were cared for at taxpayer expense before being released all over the country.

3. Temporary Protected Status

Economist Milton Friedman said that “nothing is so permanent as a temporary government program.”

He could have been talking about Temporary Protected Status, or TPS, a program authorized in 1990 that allows the Department of Homeland Security to let illegally present aliens remain in the U.S. if there are extraordinary circumstances in their home countries, such as war or natural disaster.

The idea was to give the damaged country time to recover before taking back its citizens. Temporary Protected Status may be extended for six to 18 months—and usually is, again and again.

During the Trump administration, DHS concluded that people from certain countries no longer needed Temporary Protected Status. That would have affected more than 240,000 Salvadorans, 76,700 Hondurans, 14,500 Nepalis, and 4,250 Nicaraguans who have been on TPS a long time.

Hondurans and Nicaraguans got Temporary Protected Status in 1998 because of Hurricane Mitch. The earthquake that initially gave Salvadorans TPS was in 2001. Nepalis got TPS due to an earthquake in 2015.

Beneficiaries of Temporary Protected Status often argue that they should be given permanent status, saying they’ve put down roots, bought houses, or have children who are U.S. citizens. But the TPS designation doesn’t lead to “a path to citizenship,” because it’s temporary. It’s in the name.

Some beneficiaries sued to prevent losing Temporary Protected Status. They lost the case, but by that time, Biden was in charge and assigning or extending TPS left and right, as this homepage shows.

As of April, about 1.2 million people eligible for TPS, according to Pew Research Center—700,000 from Venezuela alone.

4. Deferred Enforced Departure

Deferred Enforced Departure sounds like nonsense because it is.

Imagine a criminal gets arrested for robbing a bank. He is prosecuted, convicted by a jury, and sentenced to five years in prison. Then, the judge exercises “deferred enforced judgment” and says the convict doesn’t have to go to prison for the time being, or ever.

That’s what we’re talking about. After spending time and money to carry out due process on immigration cases, the administration that swore to uphold the law decides, nah, not today.

In February, Biden issued a memo authorizing Deferred Enforced Departure for Palestinians—with permission to work—for 18 months. Biden said he determined “that it was in the foreign policy interest of the United States” to grant DED in this instance. It might also have been in the interests of domestic politics, given the administration’s struggle to reconcile pro-Israel and pro-Palestine voters.

Although the civil wars in Liberia ended in 2003, some Liberians in the U.S. have been protected in some way from deportation since 1991. Many got Temporary Protected Status, but that ended in 2007.

President George W. Bush gave Deferred Enforced Departure to those Liberians. Obama extended it, as did Trump. The 2020 National Defense Authorization Act included a “Liberian Refugee Immigration Fairness” provision that made Liberians living here since 2014 eligible for green cards.

In June 2022, Biden extended Deferred Enforced Departure to Liberians, kicking the can down the road again through this June 30. I’ll wager 1,000 Liberian dollars (or $5) that DED will be renewed again.

5. Prosecutorial Discretion

“Prosecutorial discretion” describes the power cops and prosecutors have to let things go instead of throwing the book at you.

Like when you’re pulled over for speeding and the highway patrolman lets you off with a warning. Or when a DA declines to prosecute cases he doesn’t think he can win, or that aren’t serious enough to warrant the effort.

Like all discretion, prosecutorial discretion can be abused. For instance, by “rogue prosecutors” in major cities who decline for ideological reasons to do their jobs.

That’s how in Chicago, Washington, D.C., and New York, offenders get let go time and again, while Manhattan District Attorney Alvin Bragg resurrects 34 time-limited bookkeeping misdemeanors and magics them into felony charges against Trump using an election law case that the feds decided wasn’t worth it.

Kerry Doyle, the chief lawyer at U.S. Immigration and Customs Enforcement, or ICE, issued a memo in 2022 that the Center for Immigration Studies’ Art Arthur calls “a directive to ICE attorneys to tank perfectly legitimate removal cases that don’t fit within ‘priorities’ set by DHS Secretary Alejandro Mayorkas.”

ICE is a subagency of the Department of Homeland Security.

Under Doyle’s guidance, ICE attorneys “must first evaluate a case to assess its priority designation.” Then if “a case is designated a nonpriority … attorneys may exercise PD [prosecutorial discretion].”

ICE lawyers can do this simply by not filing a charge in the first place or by dismissing the case outright. No charge, no prosecution, no crime!

According to Arthur, a former immigration judge, ICE was “on track to cut loose more than 276,000 alien respondents this fiscal year … on top of more than 207,000 other dismissals and terminations“ in fiscal year 2023.

There are many more fudges, but you get the idea. It would be great to see all presidents of the United States enforce the laws on the books and, if they don’t like them, persuade Congress and voters to change the laws.

But I fear a fudge-filled future.

The BorderLine is a weekly Daily Signal feature examining everything from the unprecedented illegal immigration crisis at the border to immigration’s impact on cities and states throughout the land. We will also shed light on other critical border-related issues like human trafficking, drug smuggling, terrorism, and more.