Under The Senate’s Atrocious Border Bill, Everybody Gets Asylum

The Senate’s emergency appropriations bill released on Sunday won’t address the border crisis, and contrary to the accomplice media’s spin, the spending bill won’t “severely curtail asylum at the US southern border.”

The bill could have had the Senate reclaim the reins of lawmaking from the executive and judicial branches and clarify that widespread criminality in another country is not a basis for asylum in America. Instead, the 370-page bill, the “Emergency National Security Supplemental Appropriations Act, 2024,” includes funding for both Israel and Ukraine, plus decidedly insufficient provisions for addressing aliens and immigration.

The backers of the Senate bill seek to portray its provisions as, in the words of Joe Biden, the “toughest and fairest set of border reforms in decades.” There is little that is “tough” in the bill, however, and what is can easily be sidestepped — either by the Biden administration or the throngs of illegal aliens invading from the south.

Consider, for instance, the “emergency authority” the bill would grant to the secretary of homeland security to “summarily remove” aliens. But that authority only arises if the number of encounters with aliens at the border averages 4,000 for seven consecutive days or more than 8,500 in any one day. 

Beyond the flood of aliens allowed to enter the United States without triggering the emergency authority, the statutory exemptions gut the secretary’s authority. Specifically, the bill provides that the border emergency authority cannot be used against “an unaccompanied alien child,” so every illegal alien who is under 18 — or can pass as someone who is under 18 — will be allowed in. 

Likewise, U.S. Immigration and Customs Enforcement can exempt aliens from the “border emergency authority” based on supposed “operational considerations.” An immigration officer can exempt other aliens for public health, humanitarian, and a smattering of other reasons. The president also has the power under the Senate bill to unilaterally suspend the secretary’s border emergency authority, meaning Biden can stop summary removals at will — at least temporarily.

The country has seen these types of exceptions swallow the rule since the Biden administration supplanted President Trump’s border policies, and there is no reason to believe things will be any different after nearly four years of an open border.

Empty Asylum Reform

The Senate bill’s claimed toughening of asylum procedures is similarly impotent. Most glaring is its provision stating that individuals seeking asylum will be “released from physical custody.” The sections and subsections that follow then detail the process for handling asylum claims. 

The supposed improvement here is that asylum decisions are to be completed expeditiously, within 90 days. But the Senate includes the squishy “to the maximum extent practicable” to that 90-day timetable. That’s assuming the alien, who recall is “noncustodial,” does not abscond. The bill also allows for aliens to seek review of negative decisions, meaning they’ll have a second opportunity to flee even if they appear for the first hearing.

That the Senate bill provides for the release of aliens pending a hearing renders any other tightening of the asylum process meaningless. What would have sent a message, however, would have been for the Senate to clarify that facing general violence, including gang violence, in a country of origin, is not a basis for asylum.

Congress previously defined the grounds for asylum as limited to those who are unable or unwilling to return to their country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…” The statutory “membership in a particular social group” language has led to claims for asylum premised on spousal abuse, threats by gang members, and individuals targeted because of their occupation. 

Attempts at Reform

Under the Trump administration, Attorney General Jeff Sessions sought to “return some semblance of meaning to the ‘membership in a particular social group’ category by holding that an applicant ‘must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution.’”

As Sessions explained in his decision interpreting the statutory language, “nothing in the text of the [Immigration and Nationality Act] supports the suggestion that Congress intended ‘membership in a particular social group’ to be ‘some omnibus catch-all’ for solving every ‘heart-rending situation.’” The former AG’s opinion further indicated that “victims of private criminal activity” will generally not qualify for asylum, absent “exceptional circumstances.”

Following Joe Biden’s election, his DOJ issued an opinion vacating Sessions’ opinion, suggesting asylum was more readily available for victims of private criminal activity. But rather than explain, Merrick Garland noted he would leave the question to rule-making. Such a fundamental question should not be left to unelected bureaucrats, however, especially given the unsustainable levels of asylum applications seen in the last few years. 

source: tradingeconomics.com

Asylum for All

Maybe Congress wants to open America to every citizen of the world who heralds from a country where the government cannot control crime — which is the conclusion that follows from the Biden administration’s all-inclusive reading of the statutory “membership in a particular social group” language. If so, Congress should say so. But if not, Congress should make clear that asylum provides a safe haven for those persecuted by their government because of their race, religion, sex, political views, or whatever other specific classifications our elected officials believe appropriate. 

The irony here is that the Biden administration’s reversal of the Trump policies has fortified the funding of cartels, gangs, and traffickers — so much so that those flooding our shores will now be able to honestly say their government cannot protect them. And if “non-gang members” qualifies as a “social group,” it will be asylum for all.

Is that what Congress believes is appropriate? We don’t know because the cowards prefer to leave it to the administrative state. The Senate bill proves that.


Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion (forthcoming), National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prive—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.

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