The Biden Administration is shifting to their third strategy on dealing with the crisis at the border after attempting unilateral enforcement disarmament and denial. With the expansion of the illegal Central American Minors (CAM) Program, the Biden Administration is going to provide a "public option" for people looking to enter the United States and work without going through our immigration system. This latest strategy seems to operate under the principle that you cannot have a border crisis if there is no border. If the United States offers to bring everyone to the country regardless of whether they qualify for status under the law, no one has to enter illegally and the public relations problem for the President goes away.
To understand CAM, we have to go back to the first border crisis out of the three that have occurred in the last seven years. The year was 2014, and President Obama was implementing the illegal Deferred Action for Childhood Arrivals (DACA) amnesty that he had announced in late 2012 and nearing a midterm election. Washington D.C. was abuzz that Speaker John Boehner and his allies were close to reaching an agreement for amnesty. Before the grand bargain could be struck, the border collapsed under the weight of people flooding in to take advantage of the amnesty being promised.
With the consequences of open-border policies made manifest, the political will to double down on amnesty dissipated. Political will vanished entirely with the defeat of then-Majority Leader Eric Cantor by Dave Brat in Virginia's 7th District, largely because of Cantor's support for amnesty. The 2014 midterm elections ended up as a bloodbath for Democrats, who did their best to distance themselves from the Obama Administration's immigration policies. In 2015, the Obama Administration's breathtaking expansion of DACA, called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), was struck down by the courts.
CAM was announced by the Obama Administration in November of 2014. The program allowed aliens within the United States to apply for their children who were still residing in Central America as either refugees or parolees. This was necessary because aliens using CAM are usually not eligible to sponsor their children for one of the many family visas offered by the United States. Since they were ineligible under the law and President Obama was suffering deep political wounds as the border crisis deepened, CAM was designed to provide a way for ineligible aliens to enter the United States without crossing the border illegally. The idea was to cut out the smuggler (known as a coyote) middle man. If you want to smuggle your children into the United States, why not have the Department of Homeland Security (DHS) handle the travel arrangements? To its credit, the policy provided a safer alternative for entering the United States illegally than taking the dangerous border trip accompanied by drug cartels and human traffickers. The stories of abuse and death on the trip to our border are tragic. The amnesty policies luring families and unaccompanied children to the border have been described recently as akin to putting an ice cream truck in the middle of a minefield, and that characterization clearly applies to the Obama 2014 immigration disaster.
The incoherent enforcement policies of the Obama Administration were equated by a Federal Judge to assisting cartels in completing their smuggling conspiracy. Judge Hanen wrote, "Instead of arresting (the child's mother) for instigating the conspiracy to violate our border security laws, the DHS delivered the child to her -- thus successfully completing the mission of the criminal conspiracy."
Thus we can see the real strategy of CAM: Biden, like Obama, refuses to enact policies to defeat the cartels and human traffickers. Since he won't beat them, he will join them. If you are wondering what immigration statute authorizes the United States government to smuggle children into the country from Central America, allow me to assure you that there is no such law.
At this point you may wonder what statute provides the president the authority to create immigration programs out of thin air. The statute the government points to in this case is 8 U.S.C. 1182(d)(5)(A). It says in full: "The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion 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, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States."
Does that statute read like a blanket authority to create categorical programs for aliens otherwise inadmissible to the United States? First, the statute is clear that parole is only "case-by-case" whereas CAM creates categories for consideration meaning there is no individual consideration case-by-case. Also, note the statute makes clear that parole is temporary. This is important in the instance of CAM because we are dealing with children. The parole statute requires termination of parole when the purposes of parole are served. But if the purpose of CAM is to unite parents illegally present in the United States with the children they left behind, when would that purpose be served? In other words, if the goal is uniting the family, does parole end when they are reunited? Or is it that the parole status cannot end ever? Or maybe the parole expires when the child reaches adulthood, thus leaving the person in the country with no status? How can a statute empowering limited temporary parole on an individual basis be used to justify indefinite categorical parole?
Defenders of this type of expansive reading of statutes for executive authority will say that CAM is discretionary and meets the requirements of the parole statute. The numbers do not suggest there is any truth to the idea that CAM is discretionary. In a court opinion regarding a challenge against the Trump Administration for rescinding CAM, it was noted that 99 percent of applications under CAM were approved. One would not expect to see an individual case-by-case parole issuance approve 99 percent of applicants. The program did not meet the plain meaning of the parole statute in theory or practice under Obama, and it won't under Biden.
On top of CAM's statutory deficiencies it also is vulnerable to a legal challenge under the Administrative Procedures Act (APA). Under the APA, agencies are required to go through "notice and comment" or even more formalized rulemaking processes to receive feedback from the public and incorporate that feedback in the final rule. The idea is that agencies cannot make major rules that affect the public without first allowing them to be heard. This sounds imminently reasonable, but it is a time-consuming process that agencies prefer to bypass. CAM is clearly a major rule that has huge effects on the American public, but it was not created in 2014 through statutory rulemaking requirements and there is no indication that the Biden Administration plans to submit its version for public comment prior to implementation.
If States like Texas can acquire standing as they did in the recent successful challenge to Biden's 100-Day Deportation freeze, they are likely to successfully block the implementation of CAM. As we have seen over the past few years, courts are growing suspicious of broad claims of agency discretion across the board and particularly within immigration. CAM would likely fall to a legal challenge both on an APA claim and for failure to comply with the plain meaning of the parole statute. This is a big gamble on Biden's part. If CAM were to be challenged and fall, his third strategy of out-smuggling the smugglers will be his third immigration policy strike within his first few months. That would leave us with three more years for him to hopefully figure out that securing the border is the only viable option.
JARED CULVER is a Legal Analyst for NumbersUSA
