Former Immigration Judge Schools Open-Borders Congressman on Immigration Law 101

On February 15, in the context of the impeachment of Homeland Security Secretary Alejandro Mayorkas, the U.S. House of Representatives’ Subcommittee on National Security, the Border, and Foreign Affairs held a hearing on the “Consequences of Catch and Release at the Border.” Lawmakers had the opportunity to ask questions of Matt O’Brien, Director of Investigations at FAIR’s legal arm, the Immigration Reform Law Institute (IRLI), as well as Jessica Vaughan (Director of Policy Studies at the Center for Immigration Studies) and Jason P. Houser (a former ICE chief of staff). Of many interesting exchanges perhaps the most illustrative – and undoubtedly entertaining – was Rep. Dan Goldman’s (D-N.Y.) failed attempt to score points while attempting to trip up Mr. O’Brien. Instead, the exchange underlined the truth about existing presidential power to stop the border crisis.

Mr. O’Brien, a former immigration judge and three-decade veteran of immigration law and policy, cut to the heart of the matter in his testimony, stating that “just as the assertion that our immigration system is broken is a myth, so is the claim being advanced by the Biden Administration that it somehow lacks the authority to deal with the present crisis.” In fact, “[t]he Supreme Court was abundantly clear in its holding in Trump v. Hawaii (…) that 8 U.S.C. § 1182(f) confers upon the President the authority to close the border in response to a crisis (…) Everything that is now happening along the border with Mexico could be stopped with the stroke of a pen if the President were at all interested in stopping it.” (Note: the Trump v. Hawaii case concerned a Trump Administration ban on the entry of nationals from several terrorism-ridden countries of the world – such as Iran, Somalia, Sudan, or Syria – which the Supreme Court upheld in 2018.)

Rep. Goldman questioned Mr. O’Brien as to the legal basis of presidential authority to “shut down” the border.

Mr. O’Brien reiterated, that basis is “Section 1182(f) of the Immigration and Nationality Act, which was the statutory provision that was at issue in Trump v. Hawaii. It’s a provision that allows the president by proclamation to temporarily suspend the admission of certain classes of aliens into the United States.” The New York Democrat then asked “[s]o why didn’t Donald Trump use that?”

Mr. O’Brien replied “[h]e … he did. That’s why the Trump v. Hawaii case went all the way to the Supreme Court.”

The relevant statute Mr. O’Brien was referring to makes all of this absolutely clear and simple: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

This exchange proves that the legal options for securing the border already exist. Contrary to the Biden Administration’s insistence that new laws are needed, and that Republicans are blocking them, the legal authority is already there. To reverse the damage his administration created, President Biden already has all the tools at his disposal. He could do everything from invoking Section 1182(f) to resuming border wall construction, reinstating policies to discourage asylum fraud (such as “Remain in Mexico”), ending massive abuse of immigration parole, deporting illegal aliens, and actually enforcing the laws already on the books. The fact that President Biden is not doing any of these things suggests that the issue at the border is not due to a lack of laws, but a lack of will to use them.