Ending the Catch and Release Immigration Loophole

Ending the Catch and Release Immigration Loophole

– By Howard Sierer –

The shoe is on the other foot for liberal supporters of illegal immigration.

With principled consistency, the Supreme Court left in place Trump’s “Remain in Mexico” policy citing the same law it applied previously in upholding Obama’s “Deferred Action for Childhood Arrivals” program. Liberals prefer a Court that ignores the law and instead adopts the latest leftwing version of social justice.

Obama’s DACA program deferred deportation of illegal immigrants who were brought here when they were children. Most know only this country, speak fluent English, attend school here, and know little of their parent’s home country. Most Americans, including me as I’ve stated in a previous column, support DACA’s intent.

Controversy about the program arose because as it was implemented, it became an invitation for a new wave of parents with young children to enter illegally and then be granted an indefinite stay here. Others believed that Obama did not have the authority to implement a rule they saw as exceeding any authority granted by Congress.

When the Trump administration attempted to replace DACA with a new and more limited rule of its own, the Supreme Court held in Department of Homeland Security v. Regents of the University of California that Trump’s proposed rule ran afoul of the Administrative Procedures Act of 1946.

The act requires Executive Branch agencies to make rules using transparent processes and only after substantial public input. Its intent is to ensure that rules are formulated consistent with their enabling Congressional legislation.

The Court’s 5-4 decision was applauded at the time by liberals anxious to expand the rights of illegal immigrants. Three of the votes in favor came from liberal Justices Breyer, Sotomayor, and Kagan who continue to serve today.

Having failed to overturn DACA, the Trump administration turned to what it saw as another abuse of our immigration laws.

We have a long and proud history of providing asylum to political refugees, those escaping from oppressive regimes in places like Cuba, Syria, Iran, Afghanistan, and elsewhere. But in recent years, tens of thousands of Central Americans have come to our southern border claiming they were political refugees.

Our procedures in asylum cases call for administrative law judges to evaluate each case and determine whether or not the asylum claim is justified. The number of asylum seekers overwhelmed the process and as a stopgap, the migrants were turned loose in our country and told to appear in court on a date usually months in the future. Most just melted in and never showed up.

The Trump administration negotiated its Migrant Protection Protocols – more commonly referred to as the “Remain in Mexico” policy – with the Mexican government. It required asylum seekers to stay south of the border until their immigration court date.

The policy had an immediate effect as word spread quickly to potential migrants. A Homeland Security review found that 80% fewer Central Americans applied for asylum from May to September 2019 as over 70,000 asylum seekers were returned to Mexico. Mexico in turn began preventing Central American migrants from crossing its border with Guatemala, reducing pressure on its U.S. border.

Liberals argue that economic conditions are deplorable in Central America and that these migrants should be accepted on humanitarian grounds. But we offer political asylum only to refugees oppressed by their home governments. If humanitarian grounds alone were sufficient, perhaps a billion people or more around the globe would flock to this country.

Then-candidate Biden campaigned on repealing Trump’s “Remain in Mexico” policy and issued an executive order canceling it within hours of taking office on January 20^th. His administration made no pretense of complying with the provisions of the Administrative Procedures Act.

The immediate effect was a human tidal wave of “asylum” seekers from Central America. Like many of Biden’s actions – abandoning thousands of Afghanis who worked with us is the most recent example – he showed little concern for the obvious repercussions of abolishing “Remain in Mexico.” I described the border chaos he created in a previous column.

In its August decision, the Supreme Court used the same reasoning in invalidating Biden’s ill-considered repeal as it did in preserving Obama’s DACA policy. The Biden administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious,” said the order for a 6-3 majority.

In my mind, an even more ominous threat to the rule of law was evidenced by the flip flop of the three liberal justices – Breyer, Sotomayor and Kagan – who opposed Trump’s attempt to overturn DACA. All three voted to support Biden’s far more laughable executive order. It’s clear that these three justices vote to legislate from the bench rather than rule on a case’s legal merits.

I support DACA’s intent although I question its legality. I support “Remain in Mexico” as the only practical way to maintain the integrity of our longstanding commitment to providing asylum for actual political refugees. And I support the rule of law, even when I disagree with particular legislation.