Considering that immigration now regularly polls as the most important problem facing the country today and that voters overwhelmingly blame President Joe Biden for the border crisis, it is not surprising that Biden is desperately trying to shift the blame for his failed policies onto Republicans.
That is why, after the recent Senate border bill negotiated by Sen. James Lankford (R-OK) failed, Biden tried to pin the current border chaos on Republicans.
“Every day between now and November, the American people are going to know the only reason the border is not secure is Donald Trump and his MAGA Republican friends,” Biden said after the Senate rejected the Lankford-Biden border bill. “It’s time for Republicans in Congress to show a little courage, to show a little spine, to make clear to the American people that you work for them, not for anyone else.”
Never mind for a moment that it is ludicrous to blame the failure of a bill in January 2024 for a crisis that started in January 2021. Let’s take the hypothetical that had Biden passed the Lankford bill on day one of his presidency. Would the current crisis still exist today?
To better focus this question, let’s consider the recent murder of Augusta University nursing student Laken Riley by an illegal immigrant from Venezuela released into the country by Biden in September 2022.
Had the Lankford bill been law in 2022, would Riley be alive today?
The answer is a firm no. The Lankford bill would have done nothing to prevent Riley’s murder.
Riley’s alleged murderer, Jose Ibarra, was charged with illegally crossing the southern border near El Paso, Texas, on Sep. 8, 2022. He was arrested with his wife and his wife’s young child. Ibarra was then released into the United States pursuant to Biden’s parole authority.
Now, supporters of the Lankford bill will tell you that the legislation ends parole for immigrants arrested between ports of entry, like Ibarra. However, existing law already bars the parole of immigrants arrested at the border. Biden got around this bar by using an “urgent humanitarian” exception. Specifically, Section 212(d)(5)(A) of the Immigration and Nationality Act currently says the secretary of the Department of Homeland Security may issue parole to an immigrant “only on a case-by-case basis for urgent humanitarian reasons.”
The Lankford keeps this loophole open. Specifically, the law says the secretary may determine “on a case-by-case basis” that there is an “urgent humanitarian reason” an immigrant needs to be paroled into the country.
So, the Lankford bill would have done nothing to stop Biden from paroling Ibarra into the country.
Even worse, however, the Lankford bill would have created a brand new processing system that would have made Biden’s abuse of the parole loophole unnecessary. Specifically, the Lankford bill created a brand new “noncustodial removal” process triggered by any immigrant indicating “an intention to apply for a protection determination.”
Considering that Ibarra and his wife specifically got married to increase their chances of winning protection from deportation, Ibarra surely would have chosen this route.
Once an immigrant is placed in this new “noncustodial removal” process, the Lankford bill mandates their release. It’s right there in the legislation: “Aliens referred for proceedings under this section shall be released from physical custody.”
Under the Lankford bill, Ibarra and his family would have been enrolled in Immigration and Customs Enforcement’s existing “Alternatives to Detention” program. This means Ibarra would have been either fitted with an ankle bracelet or given a cellphone, which he would have had to use to check in with authorities on a regular basis. Then, Ibarra and his family would be free to go wherever they wanted in the United States, just like what happened in real life.
Now, in theory, Ibarra and his family would then meet with an asylum officer in the U.S. within 90 days after his initial arrest for a “protection determination.” But the legislation doesn’t even mandate this. The 90-day clock is only required “to the maximum extent practicable.” So, if an asylum officer couldn’t get to Ibarra’s case in that 90 days, nothing would happen.
But let’s say Ibarra was seen by an asylum officer and that officer determined Ibarra did not qualify for asylum. ICE could just grab him right there and deport him, right?
Nope.
The Lankford bill specifically says these protection determinations “may not be conducted in a facility that is managed, leased, owned, or operated by U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection.”
This means that even if an asylum officer ruled against an immigrant’s asylum claim, which could come weeks after the protection determination hearing, ICE would still have to locate, arrest, detain, and then deport the immigrant. And during that time, immigrants such as Ibarra could easily take off their ankle bracelets or stop reporting in with their cellphones.
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There is simply no way an ICE agency run by Biden would make the effort to track down immigrants whose only offense was being in the country illegally. Biden promised exactly that during a presidential debate in 2019. Asked by Jose Diaz-Balart, “Should someone who is here without documents, and that is his only offense, should that person be deported?” Biden responded, “That person should not be the focus of deportation.”
The fatal flaw of the Lankford bill is that instead of ending catch and release, as Lankford says it does, it instead mandates the catch and release of immigrants like Ibarra. Once immigrants are released into the country, it is highly unlikely they will ever be deported.