Polls show immigration as one of the major concerns for Americans in this presidential election. Many voters do not understand, however, that immigration and naturalization are primarily the responsibility of Congress under our Constitution.
The president enforces the laws and protects our borders primarily with the tools given by Congress. It is central, then, that those tools address border security, abuse of asylum laws, detection and removal of criminal aliens, backlogged courts and the large unauthorized population in the country who are otherwise law-abiding but have no immigration relief available.
Immigration, fundamentally, is a wonderful thing. It allows for family unity, economic development, broad diversity and humanitarian aid. We are a proud nation of immigrants.
Unfortunately, we have allowed immigration to become a huge, complex mess. Perhaps the best way to move forward as we wait for Congress to act is to focus on simple steps that an incoming administration should take.
The Biden-Harris administration has used CBP One — a U.S. Customs and Border Protection smartphone app that offers appointment slots for people to request asylum at ports of entry — to streamline asylum applications for those seeking asylum at our southern border. CBP One has been criticized amid concerns that it is difficult to use. More specifically, the criticism is the availability of appointments, periodic technology crashes and limited smartphone access.
Consequently, one might argue that the right to seek asylum in the U.S. is denied by CBP One and thus its use is unlawful. Nonetheless, the Immigration and Naturalization Act allows the attorney general to establish limitations and conditions — not inconsistent with the right to seek asylum — within the asylum process itself. The law likely allows those who do not arrive at a designated port of entry to be transferred to one to apply for asylum.
The current administration’s so-called “asylum ban” may be somewhat problematic but still workable in other ways with safe third-country agreements. These agreements are usually treaties entered into by two countries to better manage the flow of refugee claimants at a shared land border. With few exceptions, the ban bars asylum-seekers who have not applied for asylum while passing through a third country or who did not make an appointment to seek asylum at a southern border port of entry.
Without a safe third-country agreement, the first aspect of this ban will probably not withstand judicial scrutiny. But the second aspect, requiring an appointment, would probably withstand legal challenges.
In June, the Biden-Harris administration started using the Immigration and Nationalization Act to suspend the entry of noncitizens who cross the southern border unlawfully. Asylum advocates have claimed this violates the right to seek asylum guaranteed by domestic and international law. We disagree. Unlawful entrants can — and should — be returned. Once returned, these people can then seek asylum through CBP One.
U.S. and international law allow for parameters to be established around the right to seek asylum. An orderly asylum process does not undermine the right to seek asylum.
CBP One, the asylum ban, and the suspension of unlawful entrants have helped to stem the tide of unauthorized crossings, and the word has gotten out to those who would seek to enter the U.S. unlawfully. In addition to more border agents, and an increase in the use of technology, both CBP One, the asylum ban and current Immigration and Naturalization Act provisions should remain on the table as executive tools to combat unlawful migration.
While CBP One has had technology glitches in its infancy, and there remains a right to seek asylum in the U.S., technology should not be abandoned because of initial difficulties, and just as there is a right to seek asylum, there is also a sovereign right to ensure that the process is orderly and manageable.
Nonetheless, the asylum ban could be strengthened with safe third-country agreements between the U.S. and our neighbors to the south. U.S. asylum law allows asylum applicants to be removed to safe third countries where they may safely seek asylum protection.
It is important to understand what asylum protections are, and what they are not. Asylum laws are an extension of the principle of non-refoulment, or non-return, of an individual to a place where he or she has been or will be subject to persecution on account of race, religion, nationality, political opinion or membership in a particular social group.
“I am going to kill you because of your race” is something different from “I’m going to kill you because you refuse to pay me.” The first may be a legitimate claim for asylum; the other, while tragic, and without anything else added, falls outside of asylum protection.
Because many border crossers are seeking asylum, establishing asylum offices at the border could help to alleviate pressure on our immigration courts. Trained asylum offers can process legitimate claims at designated ports of entry instead of routing them to the immigration courts for adjudication.
Asylum offices could also be established in countries south of our border. Would-be asylum seekers should be allowed to present their claims at U.S. asylum offices in Mexico and in other Central American countries. Those with legitimate claims might be granted provisional approval; those who are denied can then make the decision whether to further pursue a claim for asylum at a U.S. port of entry, with a provisional denial in their record.
This would help to manage the pressures on our southern border, alleviate pressures on our backlogged immigration courts and reinforce the message that asylum is not an easy pass into the U.S.
In addition, a new administration should work with Congress to allocate funds for more border agents, better use of technology along the border to detect unlawful crossings, border fencing where practicable and find ways to secure cooperative agreements with neighboring countries, particularly Mexico, to help stem the tide of illegal migration.
The immigration courts are creations of bureaucracy and fall under the attorney general’s authority. An incoming administration may consider restructuring the immigration courts.
For example, the attorney general might establish an asylum docket, a criminal alien docket, a cancellation of removal docket, and so forth. The current immigration court system allows for assorted cases before every immigration judge. Specific dockets could result in far greater efficiency, and importantly, put aliens subject to removal due to criminal grounds on a fast track for adjudication.
In addition to the asylum offices, an asylum docket would fast-track asylum claims. Specific dockets could go a long way in addressing our backlogged immigration courts.
There are enormous challenges when addressing the large unauthorized population presently in the country. Despite the difficulties, many people will agree that the process of addressing these challenges must begin.
For starters, a new administration should consider using prosecutorial discretion in initiating removal cases and terminating removal cases. The resources of Immigration and Customs Enforcement are arguably better used focusing on criminal aliens rather than worksite enforcement. Moreover, the immigration court system should prioritize criminal aliens.
The new leadership should also consider an administrative tool known as a stay of removal for low-priority cases.
If a person ordered removed is granted a stay, that person then becomes eligible for work authorization. Low-priority cases might be put on a stay of removal docket. The government might allow people unlawfully present to voluntarily come forward for the specific purpose of being placed on the stay of removal docket.
The payoff would be work authorization, and as the numbers grow, pressure would be put on Congress to pass immigration reform.
Finally, the next administration should understand that it must work with Congress.
In our 2014 book, “A Conservative and Compassionate Approach to Immigration Reform,” simple changes to the Immigration and Naturalization Act could address the millions unlawfully present while also addressing future pressures on our immigration system. Updating the registry provision and section 245(i), eliminating the unlawful presence as a ground of inadmissibility and addressing visa overstays by adding a new ground of inadmissibility would bring immediate relief to our vast immigration problems.
Many Americans have consistently identified immigration reform as a top priority. However, neither presidential candidate has articulated a coherent comprehensive policy for Congress to move this forward.
Unquestionably, the challenges are vast and complex. However, these simple executive branch steps may be the best approach until we as voters insist that Congress does its job.
It is not enough for members of Congress to point fingers or continue to use this issue for political gain. On this matter, the buck stops with the Congress.
David Strange and Alberto R. Gonzales are authors of “A Conservative and Compassionate Approach to Immigration Reform.” Strange is an immigration expert at Whittenburg & Strange, PC. Alberto R. Gonzales is the former White House counsel and U.S. attorney general in the George W. Bush Administration.
