Under Biden Logic, the Next Administration Can Simply Send Every Illegal Immigrant Packing

Under the Biden administration’s logic — not simply the obvious implications of its actions, but it’s actual written legal justifications — the next administration doesn’t need to place any removable alien who isn’t already before an immigration judge into removal proceedings to deport them. It can simply remove them. Not that I am recommending such a course of action, but let me explain how it would work — and why it shouldn’t.

Section 236 of the INA: “Apprehension and Detention of Aliens”

Section 236 of the Immigration and Nationality Act (INA) is captioned “Apprehension and detention of aliens”, and it is true to its title. 

It lays out the authority and processes by which DHS (in this instance, ICE) deals with removable aliens, and begins, at subsection (a): “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States”. (Emphasis added.). The highlighted provision is key. 

Note that Congress in that provision never explains how that “decision on whether the alien is to be removed from the United States” would occur, who would make that decision, or what — if any — rights aliens would have in that process. 

Logically (and traditionally and by regulation), that decision would be made by an immigration judge in removal proceedings under section 240 of the INA. Here’s the thing, though — section 236 of the INA never mentions removal proceedings, never talks about that decision being made by an immigration judge, and never even refers to section 240 (or its U.S. Code designation, 8 U.S.C. §1229a). 

Of course, everyone knows — or thinks they know — that section 236 of the INA authorizes apprehension and detention for purposes of section 240 removal proceedings. But if that’s true, why wouldn’t Congress reference section 240? If that were Congress’s intent, it could simply have added the words “in removal proceedings under section 240 of the Immigration and Nationality Act” after “pending a decision”. It didn’t. 

Section 240 of the INA: “Exclusive Procedures”

With that in mind, consider section 240 of the INA, more specifically paragraph (a)(3) therein, which reads as follows, in pertinent part: 

Exclusive procedures— Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. [Emphasis added.]. 

That would appear to be “game over” for the scenario I proposed at the outset. If section 240 proceedings are the “sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States”, there’s no way that, say, President Nikki Haley could simply decide ICE can make the final decision on removals of aliens apprehended and detained under section 236 of the INA. Right? 

Well, there’s a lot of support for that conclusion, starting with that paragraph excerpted and proceeding to section 240(c) of the INA, captioned “Decision and burden of proof”. 

Subparagraph (1)(A) in that subsection states: “In general— At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing.” (Emphasis added).

Notice how Congress therein used a similar word to the one in section 236(a), “decision”, in the context of whether or not the alien is “removable from the United States”. It’s axiomatic that words in the same statutes are to be given the same meaning, and that would logically be true in this instance. Except . . .. 

. . . For Section 236(e) of the INA

That interpretation of section 240(c)(1)(A) of the INA is about as clear as it could be, and I have no doubt that any reviewing court would read it in that manner. There’s only one problem, though — thanks to the judicial review bar in section 236(e) of the INA, it’s not clear any reviewing court would ever get the chance. 

Here’s how that provision reads: 

The Attorney General’s [now DHS’s] discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. [Emphasis added.]

Those are fairly ambiguous words — “the application of this section”. Does that mean the application of section 236 of the INA to a given alien? Possibly, but those words don’t appear therein, either. “The application of this section” could mean how it applies to a class of aliens or all aliens, barring courts from reviewing President Haley’s take. 

Logically Congress included those words is to keep a reviewing court from intermeddling in the issues discussed in the second section, “regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole”. And that’s likely the case — maybe. 

The Surplusage Canon

The problem is that courts apply certain “canons of statutory interpretation” to interpret statutes like this, and one of them is “the surplusage canon”. Here’s how the late Justice Antonin Scalia explained that canon in his article “Reading Law”, written with legal scholar Bryan A. Garner: 

If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence. 

If you read the second sentence in section 236(e) of the INA as simply repeating what the Congress said in the first sentence, it runs afoul of the canon because it duplicates what came before.

Biden Logic

If everything that has preceded this sentence appears to be absurd to you, to be fair it seems pretty absurd to me, too. The problem is that it’s not absurd under Biden logic.

On March 29, 2022, the administration published an interim final rule captioned “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers”, also known as the “Asylum Officer rule”. 

As I have explained elsewhere, the rule overturned more than 20 years of practice and procedure by allowing asylum officers at USCIS to adjudicate asylum claims made by aliens subject to “expedited removal” — that is, aliens encountered by CBP at the borders and ports who lack proper documents to be admitted to the United States (including illegal migrants).

That expedited removal provision gives CBP the authority to quickly expel such aliens, but expedited removal comes with a catch. By statute, if an alien subject to expedited removal asks for asylum, CBP must send that alien to a USCIS asylum officer to determine whether that alien has a “credible fear of removal”, that is, whether the alien may be eligible to be granted asylum. 

Section 235(b)(1)(B)(ii) of the INA, captioned “Referral of certain aliens”, states: “If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution. . . the alien shall be detained for further consideration of the application for asylum”. (Emphasis added.)

Until the publication of that rule, the words “further consideration of the application for asylum” in that clause were interpreted as “consideration by an immigration judge in removal proceedings under section 240 of the INA”. The rule amends that process to allow the asylum officer who conducted the credible fear interview to then turn around and decide whether to grant the alien asylum. 

That’s contrary to the statute in any number of ways, starting with the fact that this new protocol would require the asylum officer who performed the credible fear interview to refer the asylum application to him or herself, which is especially true given that under the rule the record of the credible fear interview is deemed the application for asylum. That’s not a “referral” as the title calls for; it’s a “retention”. 

Keep in mind also that the caption on section 235 of the INA is “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing”. The adjudication by the asylum officer is not a “hearing”, however — it’s a “nonadversarial interview”, because there’s no authority for an asylum officer to conduct a hearing. 

The term “hearing” in that context is a clear reference to section 240(c)(1)(A) of the INA, which I quoted above but again for reference it states: “At the conclusion of the proceeding the immigration judge shall decide whether an alien is removable from the United States. The determination of the immigration judge shall be based only on the evidence produced at the hearing”. (Emphasis added.) 

So how then did the Biden administration conclude that asylum officers could adjudicate asylum applications made by aliens who had been subject to expedited removal? Here’s how that March 2022 publication explains it: 

Section 235(b)(1)(B)(ii) of the INA . . . authorizes a procedure for “further consideration” of asylum applications that is separate from section 240 removal proceedings. As the Department of Justice recognized over two decades ago, “the statute is silent as to the procedures for those who . . . demonstrate a credible fear of persecution.” Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10320 (Mar. 6, 1997) (interim rule). . . . .  

….

By not specifying what “further consideration” entails, the statute leaves it to the Departments to determine.

That quote from the March 6, 1997, interim rule, about how the “statute is silent”, continues, however, and is telling in what it has to say: 

Once an alien establishes a credible fear of persecution, the purpose behind the expedited removal provisions of section 235 of the Act to screen out arriving aliens with fraudulent documents or no documents and with no significant possibility of establishing a claim to asylum has been satisfied. Therefore, the further consideration of the application for asylum by an alien who has established a credible fear of persecution will be provided for in the context of removal proceedings under section 240 of the Act. [Emphasis added.]

Note that there is no reference to this language in the March 2022 rule, but it’s the only logical interpretation of the “referral” language in section 235(b)(1)(B)(ii) of the INA.

Back to Section 236 

That aside, however, and following the Biden logic in that rule, section 236(a) is equally “silent” on how the “decision on whether the alien is to be removed from the United States” is to be made. Therefore, President Haley’s DHS could simply apply this logic to allow ICE officers to decide whether the aliens they apprehend and detain should be removed. 

It would definitely allow those officers to reduce the unauthorized population in the United States fairly quickly, and what’s more, would alleviate the burden that would otherwise be imposed on the immigration judges in making such decisions in removal proceedings — another expressed benefit of Biden’s Asylum Officer rule.

Reading the INA in Context

The only way that I could advance the proposal at the outset is to do what the drafters of the Asylum Officer rule did: read specific statutory provisions in the INA in isolation. 

By examining section 236 of the INA as a free-standing statute and finding that it did not reference section 240 in its text, I was able to conclude — and with some authority — that the Haley administration could just ignore removal proceedings entirely. And, that there’s not much a reviewing court could do to stop it from doing so.

That is exactly what the Biden administration did in the Asylum Officer rule, and why that continued reference to the March 1997 interim rule is so important. The drafters of that earlier rule realized — correctly — that the expedited removal and credible fear process is supposed to be read in the context of the INA as a whole, and more specifically, in the context of part 4, subchapter II of the INA, in which sections 235, 236, and 240 of the act all appear. 

That part is captioned “Inspection, Apprehension, Examination, Exclusion, and Removal”, and for want of a better term, it’s the “enforcement” provision of the INA. Other parts address how foreign nationals are selected to come here (part 1), qualifications for admission (part 2), the issuance of entry documents (part 3), adjustment to lawful permanent residence (part 5), specific rules for alien crewmen (part 6), registration of aliens (part 7), and criminal penalties (part 8). Part 8 aside (federal district court judges hear those cases), part 4 is where all those other parts are actually enforced. 

Part 4 is meant to be read as whole, proceeding from the inspection system at the ports and borders (section 235) and the apprehension and detention process in the interior (section 236) to the initiation of removal proceedings (section 239) to removal proceedings (section 240) and federal court review (section 242) and on to removal itself (section 241). It’s not linear in text (Congress has amended the INA a lot and does a poor job of keeping track), but it is linear in application.

If you want proof, look no further than section 242(f)(1) of the INA, which bars federal courts — except for the Supreme Court — from enjoining any action under part 4 of subchapter II, except with respect to the application of those provisions an individual alien who is in removal proceedings. There’s no similar carve-out for any of the other parts of the INA because they are not to be read holistically, as part 4 is.

Why It Matters

This matters because executive branch norms have, to one degree or another, long ensured the INA operates as Congress plainly intended. Courts have a say, of course, but not where, as in section 236(e) of the INA, Congress bars them from review.

Congress can always step in and correct interpretations of the sort that I have proposed, except: (1) the legislative branch, by design, moves slowly, at best; and (2) any major amendment to the INA is bound to be contentious. 

It takes 60 votes in the Senate and a majority of the House to make such an amendment (assuming the speaker is amenable to begin with), and there are likely at least 41 senators who would look away while a President Haley undoes the harm the Biden administration has done to the immigration system through such a novel interpretation of the law. 

As a federal district court judge recently held: “The immigration system . . . dysfunctional and flawed as it is, would work if properly implemented.” The problem is that the Biden administration has done a lot to ensure that the system is not properly implemented. That needs to stop, or you can expect a pendular backlash from the next president. Once norms are broken, they’re not easy to fix.