Mark Morgan, who ran Customs and Border Protection under President Trump, said the Senate’s new immigration deal has so many loopholes that it is unlikely to solve the chaos at the southern border.
In an interview with The Washington Times, Mr. Morgan said the demographics of the newcomers may change, with fewer single adult migrants and more people traveling as families. “The overall numbers are going to be the same as they are now,” he added.
“It’s just a series of shell games. There’s some language in there that makes it seem tough, but then there’s a series of exceptions that render the tough part meaningless,” said Mr. Morgan.
The deal, announced Sunday night, would build the government’s deportation capacity, tighten standards for claiming asylum and curtail some uses of “parole” powers that President Biden has used to welcome record numbers of illegal immigrants to the U.S. It also includes a new expulsion authority that would kick in if the flow at the border crosses certain thresholds.
The bill also gives official imprimatur to other parole programs, removes the adversarial nature of asylum proceedings and includes exceptions to detention and the expulsion authority.
Brandon Judd, president of the National Border Patrol Council, said he thinks the legislation is an improvement over the current situation, with 6,500 unauthorized migrants coming through on an average day.
About 60% of the current flow of people are single adults. Under the new legislation, Mr. Judd said, they can be detained and quickly deported, so their numbers should rapidly decline.
He said families will still be released but expedited procedures envisioned in the bill mean they will get faster final decisions on their asylum claims and can therefore be deported.
Once people see their relatives, friends and neighbors failing to gain a foothold, it will tamp down on their numbers too, he said.
“I would expect that this absolutely would drop traffic,” Mr. Judd told The Times. “I don’t see a downside to it. Why not try it?”
Questions about the efficacy of the deal could determine its fate.
Sen. James Lankford, the Oklahoma lawmaker who served as Republicans’ chief negotiator, says the deal is a once-in-a-generation chance to give presidents — including whoever comes after Mr. Biden — powers to gain control of the border.
He said it’s impossible to predict the future flows of migrants but his legislation will make a dent.
“When enforcement goes up dramatically, the numbers drop dramatically,” he told reporters on Sunday night.
The new expulsion authority kicks in when Homeland Security averages 4,000 encounters a day with unauthorized migrants, with some exceptions for how the figure is tallied. The expulsions become mandatory when the total rises to 5,000 per day or 8,500 in a single day. At that point, only 1,400 people per day would be guaranteed entry through official border crossings.
Mr. Lankford said the U.S. has dipped below the 5,000 level on just seven days out of the past four months, so the expulsions will automatically cut into the flow of people. If the expulsion program had been in place, he said, it would have reduced the number of people allowed in and screened for asylum and other defenses against deportation from 1 million over those four months to about 200,000.
He said the bill turned catch-and-release into detain-and-deport.
Mr. Morgan, though, said families and children would still be released under Mr. Lankford’s bill.
He said the bill has the aura of enforcement but quickly breaks down in the details.
“It sounds really tough — ‘There is border wall funding in there’ — well, not really. ‘It ends catch-and-release’ — well, not really,” Mr. Morgan said.
Robert Law, a former senior official at U.S. Citizenship and Immigration Services, said the deal has workability problems.
He said USCIS does not have enough staffing and infrastructure to handle the increased asylum workload, particularly on top of its 1 million case backlog. Even the expanded deportation capacity isn’t enough to handle the levels of illegal crossings Mr. Biden has seen, he added.
“I don’t believe this bill gives a single new authority to actually secure the border,” he said. “The resources are great, and that would be helpful to a future Trump administration or any other subsequent administration. But beyond that, there is nothing new in this bill that creates an enforcement tool.”
Mr. Law, now director of the America First Policy Institute’s Center for Homeland Security and Immigration, said the bill would also undercut some of the strong provisions of current immigration law. Setting the crisis level at the border at 4,000 or 5,000 crossings a day could undercut the president’s current emergency powers to shut down the border when it becomes “detrimental” to the U.S.
“It seems like this bill was written by people who have never done immigration enforcement work,” Mr. Law said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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