Sunday, May 15, 2022

The 119-year law that undermines Biden’s border arguments

Most significantly, when Congress lumped in illegal migrants with aliens seeking admission at the ports by replacing the concept of "Excludability" of arriving aliens with "Inadmissibility" in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the detention mandate was expanded to three separate provisions in section 235(b) of the INA: One for illegal aliens in expedited removal pending a credible fear interview; a separate one for aliens who received a positive credible fear assessment pending their asylum hearings; and a general one for inadmissible aliens not in expedited removal.

Further, one of the major reasons why Congress replaced "Excludability" with "Inadmissibility" was to reverse decades of case law that had given illegal migrants substantially more rights than aliens who were caught at the ports, the result of an unwieldy calculus known as the "Entry doctrine".

When Congress eliminated the entry doctrine in 1996 to treat illegal migrants the same way it had treated excludable aliens for 93 years, it mandated their detention, too, and allowed DHS to send migrants caught at the border back to await the hearing at which they would or would not be allowed into the United States.

When all those illegal migrants were lumped in with the handful of theretofore excludable aliens who had presented themselves at the ports, the former INS's detention space was going to be taxed, but Congress still required them all to be detained.

Second, section 235(b)(2)(C) of the INA, which Prelogar termed the "Contiguous territory return" provision does not apply to aliens in expedited removal proceedings under section 235(b)(1) of the INA found to have credible fear.

When it apprehends illegal migrants at the border, DHS has the option to treat them as(1) aliens or(2) aliens.

If DHS charges illegal migrants on this ground, they are(2) aliens, and can be sent back under the contiguous territory return provision.
 

https://cis.org/Arthur/Why-Does-INA-Require-Illegal-Migrants-Be-Detained 

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