Comprehensive enforcement, not Title 42, essential to secure borders


May 12, 2023

By Matt O’Brien

The immigration sky is falling! And when the Title 42 declaration issued during the COVID-19 pandemic is formally rescinded on May 11, 2023, Americans will be entirely unable to prevent foreigners from entering our country. Unless, of course, Congress passes Democrat-sponsored amnesty legislation that would reward virtually every illegal alien in the United States with a clear path to citizenship.

At least, that is what Joe Biden and Alejandro Mayorkas would have you believe. But they’re both lying. The truth is that the enforcement authorities contained in the Immigration and Nationality Act (INA) are more than sufficient to secure the border if only Biden and Mayorkas had any interest in doing so.

The fact is, the importance of Title 42 as a border security tool has been grossly overstated. The current crisis at the border has been deliberately created by the Biden Administration. And, regardless of whether Title 42 had ever been invoked, the chaos that now reigns along the frontier with Mexico could have been, and could still be, stopped by simply enforcing existing provisions of the INA.  

“Title 42” is shorthand for 42 U.S.C. § 265, a provision of the Public Health Service Act of 1944. It authorizes the Surgeon General to bar the entry of foreign nationals when they carry a risk of introducing a communicable disease into the United States. The reason Title 42 is significant is because it removes the requirement that an alien receive a hearing prior to expulsion – which is a critical timesaver in a full-blown pandemic that occurs alongside a mass migration crisis.

Biden’s immigration team has consistently claimed that, in the absence of Title 42, the United States is powerless to expel any illegal alien who claims to be seeking asylum. However, this a scam.

The INA grants the president significant power to respond to a wide variety of exigent circumstances at America’s borders. In Trump v. Hawaii the Supreme Court held that pursuant to 8 U.S.C. § 1182(f), Congress gave the president broad discretion to suspend the entry of non-citizens to the United States when their admission would be detrimental to the national interest.

Regardless of whether Title 42 had ever been invoked, the chaos that now reigns along the frontier with Mexico could have been, and could still be, stopped by simply enforcing existing provisions of the INA.

This power was intentionally bestowed upon the president to ensure that he is both able to defend the borders of the United States and to properly exercise the foreign affairs powers inherent in the office of the chief executive. And the mandate granted under Section 1182(f) is significantly broader than that set forth in Title 42.

To exercise this authority, the chief executive need only issue an executive proclamation stating the class of non-citizens being barred and the reason why their admission is contrary to American, diplomatic, economic, public safety or national security interests. And there is no reason why 1182(f) could not be used

Furthermore, as a matter of international law, the U.S. is required to maintain a system for evaluating refugee protection claims. However, it isn’t required to give asylum to any specific alien. As the International Justice Resource Center notes, “The 1951 [U.N. Refugee] Convention does not define how States parties are to determine whether an individual meets the definition of a refugee. Instead, the establishment of asylum proceedings and refugee status determinations are left to each State party to develop.”

In fact, the decisionwhether or not to protect a foreign national who has requested asylum is an entirely discretionary one. The United States is entitled to deny asylum, even to an applicant who has established persecution, based entirely on its own public safety, national security and foreign affairs interests.

In plain English, that means that Biden and Mayorkas, despite their protestations to the contrary, aren’t obligated to treat every shaky claim of persecution as 100 percent valid just because the applicant said the “Magic A-Word.” They could simply turn around those who arrive in the border zone peddling obviously bogus asylum narratives.

So, what does this all mean? Team Biden doesn’t want to secure the border. Rather, it wants to pack the United States full of aliens with two goals in mind. First, it is planning to force a mass amnesty – commonly referred to by the code name “comprehensive immigration reform” – by making the argument that America lacks the physical resources and political will to eject the estimated 20-25 million illegals who are currently living in the United States. Second, it is hoping that when those illegals become citizens, they will show their gratitude by voting for the progressive party that transformed them from deportable border jumpers to un-removable citizens.

If that all sounds strangely familiar, don’t be surprised. Advocates for the Immigration Reform and Control Act of 1986 used exactly that strategy to dupe border hawks into supporting the disastrous amnesty provisions in the bill. As a result, the illegal alien population ballooned as border jumpers made their way to the U.S. to await the next amnesty.

But the fact is America doesn’t need comprehensive immigration reform. Rather, it simply needs comprehensive immigration enforcement, using the laws already on the books.

Matt O’Brien is the director investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.

Also published at The Washington Times, May 12, 2023.

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