Soldiers will not prevent a border crisis

The Biden administration has used Title 42 to expel illegal border crossers more than 2.7 million times. According to the administration’s own estimates, illegal crossings may increase to as many as 18,000 a day when Title 42 is terminated. 

The Department of Homeland Security (DHS) asked the Department of Defense (DOD) for more military assistance for the expected surge in illegal crossings, and Defense Secretary Lloyd  Austin approved a 90-day deployment of 1,500 active-duty soldiers. This is in addition to 2,500 National Guard soldiers he had already deployed to the border. 

Will these soldiers provide enough assistance now that Title 42 has been terminated?

Title 42 is not the only factor that influences whether migrants will make illegal crossings. Fear of being expelled under that order did not prevent the occurrence of record-breaking numbers of illegal crossings during the Biden presidency.

The Bensman factors

Immigration analyst Todd Bensman says that whether migrants are willing to pay big smuggling fees to come here depends on how likely it is that they will be able get in and stay.

The likelihood of getting in has been extraordinarily high during the Biden presidency. He has released more than 2 million illegal crossers into the country, a number that would be much larger if he hadn’t had to expel more than 2 million illegal crossers pursuant to Title 42.

Most migrants have been allowed to stay in the country. DHS eliminated immigration enforcement for just being in the United States in violation of our laws. If illegal crossers can reach the interior of the country, it is extremely unlikely that they will be deported unless they are convicted for committing a serious crime here. Litigation over these enforcement guidelines is before the Supreme Court.

Limitations on what the soldiers can do at the border

The soldiers won’t be a force multiplier at the border, and they can’t be used to enforce immigration laws in the interior of the country.

Moreover, their deployments to the border are temporary. Sec. Austin does not want soldiers to provide continuous support. As a condition for the deployment of the National Guard troops, he made DHS agree to work with the White House and Congress “to develop a plan and implement solutions to staffing and funding shortfalls to maintain border security and the safe, orderly, and humane processing of migrants that do not involve the continued use of DOD personnel and resources after FY2023.” 

Also, Austin said that the soldiers will not participate directly in law enforcement activities. They will fill critical gaps, such as ground-based detection and monitoring, data entry and warehouse support. 

This isn’t just a policy decision. The Posse Comitatus Act allows the use of soldiers to enforce civil laws only when “expressly authorized by the Constitution or Act of Congress.” The law restricts soldiers to providing assistance that doesn’t involve law enforcement activities, but this doesn’t make their assistance useless. The agents who ordinarily perform the tasks soldiers assume are free to return to the field and patrol the border.

The plan

DHS Secretary Alejandro Mayorkas has been preparing a plan for more than a year and a half. Unfortunately, his solution for dealing with a surge in illegal crossings is to provide migrants who do not have entry documents with “lawful pathways” for entering the United States which rely primarily on granting them parole status. The idea is that they won’t make illegal entries if they can enter lawfully.

But the lawful pathways aren’t available to every migrant who wants to come to the United States but doesn’t have an entry document. 

For instance, the administration established a special humanitarian parole program that is available only to migrants from Cuba, Haiti, Nicaragua and Venezuela who have sponsors in the United States who can provide them with financial support. 

Illegal crossings have not been limited to migrants coming here from those four countries. The Border Patrol has apprehended illegal border crossers from more than 160 countries. Moreover, migrants from the favored countries can’t all find sponsors in the United States.

Also, delays are a problem. For instance, the plan’s CBP One program, which permits migrants to make an appointment for an interview at a port of entry requires long waits. The demand for appointments is so high already that CBP has had to increase the number of appointments from 740 a day to 1,000 and make interviews available 23 hours a day. And the surge will make that wait even longer.

Unintended consequences

According to Theresa Cardinal Brown, the main problem with the administration’s parole programs is that “the courts can come in and say it’s outside the president’s authority, or an abuse of discretion, and take it all away.”

Mark Krikorian says that the administration is telling migrants who want to come here without entry documents: “Don’t break the law — we’ll do it for you!”

Texas and 19 other states have sued the Biden administration to stop the humanitarian parole program; and Krikorian apparently expects the courts to invalidate the administration’s parole grants.    

The parole provision, INA section 212(d)(5), provides that when parole status ends, paroled migrants shall be dealt with “in the same manner as that of any other applicant for admission to the United States.” 

In other words, they would be returned to their status as migrants seeking admission without a valid entry document, which would make their presence here unlawful. 

They may be safe from deportation while Biden is president, but their situation could be much different when someone else is in the White House.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanhillop-eds.blogspot.com.