The Law Requires Detaining Illegal Aliens, with Two Narrow Exceptions

In reaction to my column this weekend about how impeachment is, practically speaking, the only realistic way to pressure President Biden to change his catastrophic open-borders policy, a friend asked me for a simple explanation of the laws that make Biden’s mass-parole scam illegal. I have previously laid this out in part of a longer column. No one, moreover, has done a better job explaining this than the Center for Immigration Studies’ Andrew Arthur (see, e.g., here and here). But it’s certainly worth a succinct explanation.

In Title 8, U.S. Code (which is where the immigration laws are), sec. 1225(b)(1)(B)(IV) states:

Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed. [Emphasis added.]

That is the presumptive rule. Even aliens who may have a valid “fear of persecution” claim are supposed to be kept in custody until that claim is adjudicated. They are not to be released into the United States. That is a congressional statute, and there is no plausible claim that it is unconstitutional. Therefore, the president’s sworn duty is to execute it faithfully.

There are two exceptions to the presumptive rule:

1-Under sec. 1225(b)(2)(C), if an alien arrives on land “from a foreign territory contiguous to the United States,” the attorney general “may return the alien to that territory pending” a removal proceeding. This is the section on which Trump relied to establish the “Remain in Mexico” policy that (with Mexico’s cooperation) required aliens who tried to get in from Mexico to wait there until we could hold their removal hearings, which they were almost certain to lose. This stopped many aliens from making the perilous trip northward in the first place, so it is not only an eminently legal exercise of sovereignty, it is a humanitarian policy.

2-Under sec. 1182(d)(5)(A), the attorney general may parole otherwise ineligible aliens into the United States, but only “on a case-by-case basisfor urgent humanitarian reasonsor significant public benefit” (emphasis added). The next subsection (1182(d)(5)(B)) is emphatic that this is only for individual aliens, not mass parole:

The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee. [Emphasis added]

So that’s what the law says: Aliens who are apprehended trying to enter our country illegally are supposed to be detained. Only two exceptions are (1) return to contiguous country to await removal hearing, or (2) parole based on individual circumstances, and only if supported by compelling US interests.

There is no mass parole authority.

The Biden administration claims that it must mass parole because there is insufficient detention space to hold the millions of aliens flooding the border due to its catastrophic policies. This is not only ridiculous on its face, it is laughable given that Biden has been asking Congress for drastic cuts in detention space. If we do not have enough space to detain the illegal aliens who seek entry, the answer is to close the border. Biden and his allied progressive immigration activist agencies would claim this violates the laws that allow aliens to seek asylum. But what this means is that, one way or the other, a law must be violated. If that’s the choice, then detention is the answer.

Why? Because asylum is not a right of the alien; it is a discretionary act of government. By contrast, the statute directing that illegal aliens be detained is a mandate – it’s not a grant of discretion to the executive branch to do what it thinks best, it is a command based on Congress’s conclusion that this is what national security requires. Consequently, if the law has to be violated one way or the other, the only responsible course is to protect Americans by detaining the aliens, as Congress has commanded, even if that means cutting off discretionary benefits that accrue to the infinitesimal percentage of illegal aliens who might qualify for asylum (and who have the alternative option of applying for lawful admission under our generous legal immigration system).