Necessary Border And Immigration Statutory, Regulatory, And Administrative Changes

Legislative Proposals

Title 42 authority in Title 8. Create an authority akin to the Title 42 Public Health authority that has been used during the COVID-19 pandemic to expel illegal aliens across the border immediately when certain non- health conditions are met, such as loss of operational control of the border. Mandatory appropriation for border wall system infrastructure. The monies appropriated would be used to fund the construction of additional border wall systems, technology, and personnel in strategic locations in accordance with the Border Security Improvement Plan (BSIP).

Appropriation for Port of Entry infrastructure. Border security is not addressed solely by systems in between the ports of entry. POEs require technology and physical upgrades as well as an influx of personnel to meet capacity demands and act as the literal gatekeepers for the country. This is the first line of defense against drug and human smuggling operations.

The current border security crisis was made possible by glaring loopholes in our immigration system. The result was a preventable and predictable his- toric increase in illegal and inadmissible encounters along our southern border. This pulled limited resources from the front lines of our nation’s borders and away from their national security mission, releasing a vast and complex set of threats into our country. To regain our sovereignty, integrity, and security, Congress must pass meaningful legislation to close the current loopholes and prevent future Administrations from exploiting them for political gain or per- sonal ideology.

Unaccompanied minors

Congress should repeal Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA),9 which provides numerous immigration benefits to unaccompanied alien children and only encourages more parents to send their children across the border illegally and unaccompanied. These children too often become trafficking victims, which means that the TVPRA has failed. 2. If an alternative to repealing Section 235 of the TVPRA is necessary, the section should be amended so that all unaccompanied children, regardless of nationality, may be returned to their home countries in a safe and efficient manner. Currently, the TVPRA allows only children from contiguous countries (Canada and Mexico) to be returned while every other unaccompanied minor must be placed into a lengthy process that usually results in the minor’s landing in the custody of an illegal alien family member.  3. Congress must end the Flores Settlement Agreement by explicitly setting nationwide terms and standards for family and unaccompanied detention and housing. Such standards should focus on meeting human needs and should allow for large-scale use of temporary facilities (for example, tents). 4. Congress should amend the Homeland Security Act and portions of the TVPRA to move detention of alien children expressly from the Department of Health and Human Services to DHS.

Asylum reform 1. The standard for a credible fear of persecution should be raised and aligned to the standard for asylum. It should also account specifically for credibility determinations that are a key element of the asylum claim. 2. Codify former asylum bars and third-country transit rules. 3. Congress should eliminate the particular social group protected ground as vague and overbroad or, in the alternative, provide a clear definition with parameters that at a minimum codify the holding in Matter of A-B- that gang violence and domestic violence are not grounds for asylum.10

Parole reform. Congress should end the widespread abuse of parole in contravention of statute and return it to its origins as an extraordinary remedy for very limited purposes.

NGOs and processing. Congress should halt funds given to nongovernmental organizations (NGOs) to process and transport illegal aliens into and throughout the United States. Such funds and infrastructure, including the DHS joint processing centers, should be redirected to secure the border, detain aliens, and provide space for immigration court proceedings.

Other pathways for border crossers. While Congress should use its oversight authority to ensure that Expedited Removal is used to the fullest extent and followed to the letter of the law, other paths for border crossers should be included in a legislative package.

Migrant protection protocols. Update the statutory language providing the basis for the Remain in Mexico program as needed to withstand judicial scrutiny and executive inaction. 3. Other expedited pathways. Congress should explicitly permit programs akin to the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs.

Employment authorization 1. Congress should reassert control of employment authorization, which is subject to rampant regulatory abuse, and limit it to certain categories of legal immigrants and non-immigrants. 2. Congress should also permanently authorize E-Verify and make it mandatory.

2. Asylum Cooperative Agreements. While the agreements themselves must be negotiated, Congress should mandate that the executive branch work faithfully to negotiate and execute ACAs and set parameters to ensure that an unwilling executive cannot renege on an existing agreement or abandon the effort.

Congress should unequivocally authorize state and local law enforcement to participate in immigration and border security actions in compliance with Arizona v. United States.11 2. Congress should require compliance with immigration detainers to the maximum extent consistent with the Tenth Amendment and set financial disincentives for jurisdictions that implement either official or unofficial sanctuary policies.

Prosecutorial discretion. Congress should restrict the authority for prosecutorial discretion to eliminate it as a “catch-all” excuse for limiting immigration enforcement.

Mandatory detention. Congress should eliminate ambiguous discretionary language in Title 8 that aliens “may” be detained and clarify that aliens “shall” be detained. This language, which contrasts with other “shall detain” language in statute, creates unhelpful ambiguity and allows the executive branch to ignore the will of Congress.

Regulations

Withdraw Biden Administration regulations and reissue new regulations in the following areas:

1. Credible Fear/Asylum Jurisdiction for Border Crossers.
2. Public Charge.

T-Visa and U-Visa reform. Unless and until T and U visas are repealed, each program needs to be reformed to ensure that only legitimate victims of trafficking and crimes who are actively providing significant material assistance to law enforcement are eligible for spots in the queue. Repeal TPS designations. H-1B reform. Transform the program into an elite mechanism exclusively to bring in the “best and brightest” at the highest wages while simultaneously ensuring that U.S. workers are not being disadvantaged by the program. H-1B is a means only to supplement the U.S. economy and to keep companies competitive, not to depress U.S. labor markets artificially in certain industries.

Employment authorization. Along with the legislative proposal, take regulatory action to limit the classes of aliens eligible for work authorization.

Executive Orders

Pathways for border crossers 1. Direct the Department of State and the Department of Homeland Security to reinstate Asylum Cooperative Agreements with Northern Triangle Countries immediately. 2. Recommence negotiations with Mexico to fully implement the Remain in Mexico Protocols. 3. Reinstate, to the extent possible, expedited pathways with full credible fear/immigration court process (PACR and HARP). 4. Prohibit the use of Notices to Report, the use of any funds for travel into the interior of the United States, and government flights or transportation for aliens. 6. Eliminate the use of ATD for border crossers except in rare cases and only with the explicit authority of the Secretary. 7. l Prohibit the use of parole except in matters that are certified by the Secretary of Homeland Security as requiring action for humanitarian or significant public benefit reasons, and prohibit the use of parole in any categorical circumstance.

Enforcement 1. Restrict prosecutorial discretion to eliminate it as a “catch-all” excuse for limiting immigration enforcement. 2. Mandate the use of E-Verify for anyone doing business with the government.

5. Mandate that ICE use all detention space in full compliance with Section 235 of the INA, issue weekly reports on detention capacity, and provide authority for low-level temporary capacity (for example, tents) once permanent space is full.

6. Designate USCIS as Intelligence Community–adjacent, ensuring that it has access to national security and law enforcement databases.

7. Rescind all memoranda limiting enforcement of immigration laws including those identifying sensitive zones.

8. End ICE’s widespread use of termination and administrative closure of cases in immigration court. l Averting or curtailing a mass migration event

Provide that whenever the Secretary of Homeland Security determines that an actual or anticipated mass migration of aliens en route to or arriving off the coast of the U.S. presents urgent circumstances requiring an immediate federal response, the Secretary may make, subject to the approval of the President, rules and regulations prohibiting in whole or in part the introduction of persons from such countries or places as he or she shall designate in order to avert or curtail such mass migration and for such period of time as is deemed necessary, including through the expulsion of such aliens. Such rule and regulation making shall not be subject to the requirements of the Administrative Procedures Act. 2. Provide that notwithstanding any other provision of law, when the Secretary makes such a determination and then promulgates, subject to the approval of the President, such rules and regulations, the Secretary shall have the authority to waive all legal requirements of Title 8 that the Secretary, in his or her sole discretion, determines are necessary to avert or curtail the mass migration.

Subregulatory Matters

USCIS priorities/structural changes 1. Ensure that focus is returned to vetting, base eligibility of applicants, and fraud detection. 2. Realign the Fraud Detection and National Security Directorate (FDNS) to ensure agencywide consistency on implementation of fraud detection and vetting policies. 3. Review and repeal any internal agency memo that is inconsistent with the priorities described in this chapter.

287(g) program. Issue a memo prohibiting any jurisdiction that applies from being denied access to the program unless good cause is shown. Homeland Security Investigations (HSI) priorities. Issue Department Management Directive (and ICE companion Directive) to refocus HSI on immigration offenses and criminal offenses typically associated with immigration (for example, human trafficking). All criminal investigative work without a clear nexus to the border or otherwise to Title 8 should be turned over to the appropriate federal agency.

Blackie’s Warrants. ICE OPLA, ERO, and HSI should issue a joint internal memo on operationalizing Blackie’s Warrants for immediate use on worksite enforcement and other appropriate investigations and operations.