Washington, D.C. (August 5, 2021) – New analysis from the Center for Immigration Studies examines the Secure Fence Act of 2006 and that legislation’s stringent requirement that the Department of Homeland Security (DHS) achieve “operational control” at the Southwest border by preventing “all unlawful entries into the United States”. The mandates in that act are now President Biden’s responsibility, and that of his DHS Secretary, Alejandro Mayorkas.
Congress did not intend to give DHS any outs in implementing this requirement, because it carefully and explicitly defined the terms therein: “[T]he term ‘operational control’ means the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”
Andrew Arthur, the Center’s resident fellow in law and policy and a former staffer who worked on the act, said, “The chaos at the border is not just a political liability for President Biden; it is also a legal liability. There is a straight line from Biden’s ‘catch, release, and disperse throughout the United States’ border policies and the historic numbers of illegal migrants who are entering the United States today. There is clearly no ‘operational control’ at the border.”
Border Patrol apprehension numbers prove the mandate has not been enforced. Border Patrol agents apprehended more migrants in the months of April, May, and June than in any month in the last 21 years. July’s numbers are expected to be even higher.
Although the incoming Biden administration had promised to set up “guardrails” to prevent illegal entries before suspending then-President Trump’s effective border policies (including the Migrant Protection Protocols (MPP, also known as “Remain in Mexico”), Prompt Asylum Claim Review (PACR), and the Humanitarian Asylum Review Process (HARP)), Biden never enacted those promised guardrails, even though he scrapped the Trump policies.
President-elect Joe Biden said in December 2020 that he would slow down the promised rollback of the Trump administration’s asylum policies to avoid having “2 million people on our border.” But CBP encounters at the Southwest border have been on an upward climb each month this year and could well surpass the two-million entrants Biden claimed in December he wanted to avoid.
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