Does the Senate Immigration Bill Implement a “Detain and Deport” Policy?

The Senate immigration bill was officially released on February 4, 2024, as an amendment in the nature of a substitute for H.R. 815. Supporters of the bill claim that the bill ends the Biden Administration’s practice of catch-and-release and replaces it with a policy of “detain and deport.” In support of this claim, they point to the bill providing funding to increase U.S. Immigration and Customs Enforcement (ICE) detention bed capacity from 34,000 to 50,000, funding to increase ICE removal flights, and a new process for hearing asylum claims with a goal of completing them within 90 days.

However, a review of the legislative text reveals that the bill, if enacted, would codify a mandatory nationwide catch-and-release scheme for all populations. The failure to detain illegal aliens or make them wait in Mexico, as authorized already under the law, will incentivize continued illegal immigration at the southern border because it guarantees illegal aliens will be mass released into American communities.

SINGLE ADULTS

Current Law: Mandatory detention or Remain in Mexico.

According to Section 235(b)(1)(B)(iii)(IV) of the Immigration and Nationality Act (INA), any illegal alien apprehended at the southern border who makes an asylum claim “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” In addition to this mandatory detention requirement, Section 235(b)(2)(C) of the INA gives the Department of Homeland Security (DHS) the discretion to “return the alien to [a foreign territory contiguous to the United States” pending removal proceedings. This is the authority used by the Trump Administration to implement the Migrant Protection Protocols, also known as the “Remain in Mexico” policy.

Biden Administration Policy: Disregards current law; nationwide catch-and-release policy.

Within the first 100 days of coming into office, the Biden Administration terminated the Migrant Protection Protocols and issued ICE guidance that significantly reduced the population of illegal aliens subject to removal or detention. In its place, the Biden Administration has abused the immigration parole authority found in Section 212(d)(5) of the INA to process and release illegal aliens into American communities and be “monitored” through alternatives to detention. This practice is known as catch-and-release because it allows illegal aliens into American communities and provides them the opportunity to disappear before an immigration judge orders them removed. DHS data confirms that alternatives to detention are costly and result in fewer illegal aliens being removed from the country.

Senate Bill: Legislates mandatory nationwide catch-and-release.

While the increase in ICE detention beds is a positive provision, the 50,000 beds could be filled before the new so-called “border shutdown” authority is even triggered. The Senate bill fails to mandate the Migrant Protection Protocols, and the Biden Administration has refused to use this existing discretionary authority since it terminated this policy.

Inevitably, there will be more than 50,000 single adult illegal aliens for DHS to deal with. This is addressed in Section 3141 of the bill, which creates a new Section 235B of the INA titled “Noncustodial Removal Proceedings.” Subsection (a)(2) of the newly created Section 235B expressly states that “aliens referred for proceedings under this section shall be released from physical custody and processed in accordance with the procedures described in this section” (emphasis added). Subsection (a)(3) confirms the catch-and-release scheme by indicating that an “adult alien, including a head of household,” shall be supervised under alternatives to detention “immediately upon release of physical custody and continuing for the duration of such proceeding” (emphasis added).

Illegal aliens who pass the initial screening under Section 235B of the INA are referred to the newly created Section 240D, “protection removal merits proceedings,” for a final determination on eligibility for asylum or other forms of relief. This new process is detailed in Section 3142 of the Senate bill, and Subsection (c)(2) mirrors the language from Section 235B that an “adult alien, including a head of household” shall be supervised under alternatives to detention for the duration of the Section 240D proceedings.

While the Senate bill authorizes 50,000 ICE detention beds, this language mandating the release of all illegal aliens under the new process appears to be in conflict with claims that single adults will be subject to mandatory detention up to the bed capacity.

UNACCOMPANIED ALIEN CHILDREN

Current Law: Expedited removal for Mexican UACs; release to sponsors for non-Mexican UACs.

In 1997, the Clinton Administration entered into the Flores Settlement Agreement, which significantly limited the amount of time an unaccompanied alien child (UAC) could be held in detention. At the time of the agreement, there were very few UACs apprehended at the southern border. Then, in 2008, Section 235 of the Trafficking Victims Protection Reauthorization Act (TVPRA) created different processes for UACs from contiguous countries (Mexico and Canada) and UACs from the rest of the world. Mexican (or Canadian) UACs could be immediately returned unless they were victims of trafficking. UACs from the rest of the world, however, could not be immediately returned to their home countries. Instead, these UACs had to be transferred from DHS to the Department of Health and Human Services (HHS), Office of Refugee Resettlement custody generally within 72 hours. Then, HHS is supposed to place them with a sponsor who they are supposed to live with throughout their immigration court proceedings.

This loophole in the law has spurred a massive wave of non-Mexican UACs, mainly from Central America, coming to the southern border since the second term of the Obama Administration.

Biden Administration Policy: Applies current law but no longer vets sponsors before releasing UACs.

As a result of the Biden Administration’s open border policies, a record 440,000 UACs have been “encountered” along the southern border. Unable to manage the large numbers of UACs arriving each month, the Biden Administration’s HHS decided to expedite the release of UACs to sponsors. In doing so, the Biden Administration ended several Trump Administration policies designed to protect UACs, including DNA testing of sponsors claiming a familial relationship, screening, and vetting of all adults living at the sponsor’s house, and discretionary site visits at sponsors’ homes. In the absence of these safeguards, the Biden Administration has lost contact with at least 85,000 UACs, and New York Times reporting indicates that many of them have been subjected to sex trafficking and indentured servitude.

Senate Bill: Maintains current law; fails to mandate vetting of sponsors.

The Senate bill fails to close the TVPRA loophole, so non-Mexican UACs continue to be subject to the same process that prevents their quick repatriation. The Senate bill fails to mandate any of the vetting policies implemented by the Trump Administration that the Biden Administration has discontinued.

FAMILY UNITS

Current Law: Detention is limited to 20 days; Remain in Mexico or alternatives to detention.

Technically, the mandatory detention requirement of Section 235(b)(1)(B)(iii)(IV) of the INA applies to family units. However, in 2015, federal district court judge Dolly Gee reinterpreted the Flores Settlement Agreement to apply detention limitations to family units with minor children. Because of this, family units cannot be detained for more than 20 days, and there are numerous additional restrictions on detention. Because of the difficulties in detaining family units, they became the driver of the border crisis during the Trump Administration. To combat this, the Trump Administration implemented the Migrant Protection Protocols and required family units to wait in Mexico during their immigration court proceedings.

Biden Administration Policy: Catch-and-release, and no DNA testing to verify familial relationships.

In addition to terminating the Migrant Protection Protocols within the first 100 days, the Biden Administration also exempted most family units from Title 42’s border expulsion authority while that public health emergency authority was in place. As a result, the Biden Administration implemented a nationwide catch-and-release policy as an alternative to detention for all family units. The Biden Administration discontinued DNA testing at the border to verify familial relationships, which has fueled “fraudulent families” and the harsh recycling of vulnerable migrant children by unrelated adults.

Senate Bill: Legislates mandatory nationwide catch-and-release; fails to mandate DNA testing.

The Senate bill expressly refuses to override the Flores Settlement Agreement, thereby retaining the limitations imposed by Judge Dolly Gee’s reinterpretation. As discussed above regarding single adults, the Senate bill mandates nationwide catch-and-release for all populations subject to the new proceedings established as Sections 235B and 240D of the INA. While the Senate bill allocates money for DNA testing at the southern border, it does not mandate the collection of it to establish the familial relationship of claimed family units.