103 Dems Urge Biden Administration to Expand the Use of Illegal Executive Actions
FAIR Take | September 2023
As Republicans criticize the Biden Administration for abandoning all immigration enforcement, and governors and local leaders complain about the cost of illegal aliens in their communities, 103 House Democrats sent a letter to President Biden last week, urging him to do more to help illegal aliens who recently entered the U.S. and to expedite processing of work permits for them. In the letter, these Democrats called on the government “to use all the tools available to provide stability to undocumented individuals and recently arrived asylum seekers.”
Remarkably, these Members of Congress did not call on the Biden Administration to do more to address the flood of illegal aliens at the border; they want the President and the Secretary of Homeland Security to take more executive actions that would compound the problem. In the letter, the representatives admit that these illegal migrants have come to find work, and are seeking asylum to “provide for their families,” even though economic situations are not grounds for asylum under our laws. Not only is it ironic that legislators asking the executive branch to change the rules, but it’s also stunning that lawmakers are encouraging more lawlessness from the administration that manufactured the border crisis through an open-border and lawless agenda.
The letter makes a number of requests, many of which circumvent the very laws that Congress created or intended. They include:
Continue to grant Temporary Protected Status to prevent deportations. The letter suggests the administration continue to grant Temporary Protected Status to countries around the globe so that nationals from such countries can remain in the country to live, study or work. Given that some countries have had TPS for 25 years, it clearly is not a temporary designation. Open-border advocates challenged efforts by the Trump administration to end the many TPS designations left by previous administrations. Today, over 610,000 aliens have the special temporary protected status and reside in the U.S.
Reduce wait times for Employment Authorization Documents (EADs). Federal law requires that asylum-seekers wait 180 days before they obtain a work permit. However, under regulation, the asylum seeker cannot file for a work permit for at least 150 days after he or she files an asylum application. The lawmakers called on the administration to decrease the 150-day wait period for applying, and suggest that the illegal aliens should be able to seek work permits “from the moment that they file their asylum claim.” The delay to obtain EADs is a statutory prescribed one, intended to deter economic migrants from filing frivolous asylum claims. Yet, the Members of Congress say that six months is too long for illegal aliens to wait for their employment authorization documents and that the “waiting period is overly burdensome.” They want all migrants, even though they have not been adequately vetted or made their case to remain in the country, to stay and be part of the U.S. workforce. As the vast majority of those entering the country are economic migrants, expediting work authorizations would create new incentives for economic migrants to surge the border and abuse our asylum system.
Grant Parole to Aliens who Entered the U.S. under Title 42. The letter urges the President and Homeland Security Secretary to “grant parole for migrants who entered the United States during the use of Title 42, which includes individuals who entered between March 2020 and May 2023.” The request is stunning as there were 7.2 million encounters of illegal aliens at the borders during that time. Some of those encounters may have been repeat encounters of the same alien and some of those aliens who illegally entered may have already received parole. But granting parole to even a portion of those illegal aliens would immediately allow millions of aliens, who would otherwise be inadmissible, to live and work in the U.S. – presumably indefinitely. Moreover, aliens paroled into the U.S. for longer than one year are considered “qualified aliens” under law and thus eligible for federal benefits. The cost of this would be staggering to U.S. taxpayers.
Granting parole to millions of aliens who illegally entered the U.S. would not only be horrible policy, it would violate federal law. By statute, parole can only be granted under limited circumstances and on a case-by-case basis. Specifically, section 212(d)(5)(A) of the Immigration and Nationality Act says that the Secretary may “parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” Using parole for millions of aliens who entered the U.S. illegally is not contemplated by this law, and is in fact a direct violation of it.
Grant parole to illegal aliens who seek provisional waivers. Signatories to the letter “strongly urge” the administration to “parole-in-place” illegal aliens who have applied for a provisional waiver. A provisional waiver, if approved, waives certain grounds of inadmissibility, such as inadmissibility for unlawful presence, illegally entering, health reasons, criminal history, or immigration fraud. The Obama administration, despite no legal authority, created a process that allows illegal aliens in the United States to apply for provisional waivers of their unlawful presence without having to leave the U.S.
The Members of Congress specifically asked that the government address speed up the approvals of these waivers, and while illegal aliens wait, consider “paroling-in-place” these illegal aliens. This would entail creating a new process for them and potentially allowing them to jump the line over others, while also giving them work authorization and eligibility for federal benefits. Again, it’s important to note that “parole-in-place” for illegal aliens already present in the United States is not a statutorily provided authority for the executive branch.
Make it easier for illegal aliens to obtain cancellation of removal. The House Democrats “encourage the administration to establish a process to make non-lawful permanent resident cancellation of removal more accessible to those who are eligible” and encourage more illegal aliens to apply for said relief. Under the law, aliens may seek cancellation of removal orders when before an immigration judge, after establishing continuous physical presence in the United States for more than 10 years, good moral character, have not been convicted of certain offenses, and the removal “would result in exceptional and extremely unusual hardship” to a spouse, parent, or child (who is a United States citizen or Legal Permanent Resident). The Members of Congress suggesting that illegal aliens are not availing themselves of this relief due to regulatory construction and urge the administration to change the rules to “affirmatively request a review of their case to make preliminary determinations” before they appear before an immigration judge. They suggest that aliens should be granted “pre-approval” of this relief, before their day in court, and suggest it would “streamline” the process. Not only would this new process “unlock a path to lawful permanent resident status” (their words) but it would also run counter to congressional intent and the rule of law.
Conspicuously absent from the letter is any request for the administration to stem the flow of illegal aliens entering the United States. Nor do these Members of Congress suggest that asylum fixes should be made to benefit those who truly need refuge in the country. They do not recommend that work authorizations be rescinded when an asylum seeker’s application is denied, which is not the case today. Nor do they suggest ways to prioritize work authorizations for legitimate aliens who can truly benefit our economy or those who have gone through the proper legal channels.
Further, the members of Congress fail to include any mention of the impact these administrative actions would have on the American public and their communities. Their focus is solely on helping illegal migrants, not what constitutes good immigration policy for Americans or our nation as a whole. Ironically – but not surprisingly – the first signature on the letter is that of Jerrold Nadler, who represents New York City, which severely suffers from today’s border crisis. According to Mayor Adams, the city “will be destroyed” by the unceasing flood of migrants.
Finally, with this outrageous request to expand executive actions, these Members of Congress suggest that changing the law is not a viable option, that their role as Representatives is obsolete and the executive branch should take whatever action needed to achieve their policy goals. Ironically, they are representing Americans who sent them to Washington to make a difference and work with colleagues to improve our laws. The letter and the requests presented to President Biden should be a wake-up call that there are lawmakers who are actively working to compound the border and humanitarian crisis we see today.