Joe Edlow’s Opening Statement at House Judiciary Hearing on the Border Crisis and if the Law is Being Faithfully Executed

WASHINGTON, D.C. — Today, former U.S Citizenship and Immigration Services (USCIS) Director Joe Edlow – who also serves as an advisory board member at the National Immigration Center for Enforcement (NICE) and a Visiting Fellow at The Heritage Foundation – will deliver the following opening statement, as prepared, during a House Judiciary Subcommittee on Immigration Integrity, Security, and Enforcement hearing on the Biden Border Crisis and whether or not the law is being faithfully executed:

“Chairman Jordan, Ranking Member Nadler, Subcommittee Chairman McClintock, Ranking Member Jayapal, and distinguished members of this subcommittee, thank you for the opportunity to present testimony regarding the ongoing crisis threatening the integrity of our immigration system.

“As this committee explores the underlying causes of the crisis, the question posed today can be answered only with a resounding “No.”  The Biden Administration has seen fit to ignore the law, instead favoring poorly conceived and poorly executed policy decisions.  Their actions through executive orders, departmental memos, and rules upend the INA and congressional intent, have eroded our immigration system and propelled the crisis to current levels. 

“Section 102 of the INA charges the Secretary of Homeland Security with administration and enforcement of the Act and further vests in the Secretary the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens. The massive number of encounters recorded by CBP, the small number of alien removals by ICE, and the ever-increasing USCIS backlog, however, suggest that this Secretary has failed to faithfully execute the laws entrusted to him.

“The sharp rise in unlawful entries and attempts along the southwest border provides a critical litmus test of the crisis’ scope but is an outgrowth of Departmental actions.  Additionally, media often focuses on the border to the detriment of the other actions and inaction by ICE and USCIS. While the first 48 hours of an encounter are important, we forget that inaction, through so-called prioritization or prosecutorial discretion, will result in no enforcement action. 

“Since day one of the Administration, the Department has taken aggressive action to undermine immigration enforcement.  Nowhere is that clearer than Secretary Mayorkas’ September 30, 2021 memorandum which outlined the appropriate instances in which DHS was authorized to take action against aliens either unlawfully present or lawfully present but removable. Specifically, Secretary Mayorkas outlined three main buckets for removal – 1) threats national security; 2) threats to public safety; 3) threats to border security.  While, in theory, this would seem to encompass many aliens, in reality, the numerous carve-outs, loose definitions, and required factors for consideration make it nearly impossible for ICE to move forward with most enforcement actions.  These poorly defined categories give even some of the most serious of criminal aliens a free pass in the interest of equity.

“This and other memos sought to redefine immigration enforcement by creating fictional priorities with no basis in law.  While prosecutorial discretion is certainly permissible on a case-by-case basis, the categorical discretion through prioritization is not discretion.  The Department’s failure to enforce the full INA in the name of prioritization and discretion is a dereliction of duty.

“So too, the Department’s regulatory agenda seeks to upend the credible fear process in the name of orderly processing.  Starting with the presumption that every economic migrant is entitled to protection, in 2022, DHS issued an interim final rule on credible fear screening. Under the new process, a positive credible fear determination by an asylum officer will lead to a non-adversarial asylum interview before another DHS asylum officer.  This impermissibly changes the process and undermines congressional action by shifting adjudication authority from DOJ to DHS.

“Even more concerning, written summary of the original credible fear interview doubles as an alien’s asylum application, rendering the requirement that an alien file one moot.  This shifts the burden to present and prepare a meritorious claim for protection.  Aliens may on their story, changing or including relevant details before an asylum interview or court proceeding, but without having to affirmatively file an application.  While this does not ensure an asylum grant, it certainly provides a path for fraud and renders anti-asylum fraud measures moot.

“A second final rule issued last month appears to be tough on illegal border crossers making them ineligible for asylum however the number of exceptions and the easily rebuttable presumption belie its stated purpose.  This rule will have the opposite effect as it will ultimately incentivize aliens to make the dangerous trek northward, with families in tow.  

“I would be remiss to not mention parole abuse.  Regardless of the plain language of the statute limiting parole to case-by-case matters, parole has become a favorite tool of the Administration.  While first used as an alternative to detention, parole programs have subsequently played a large role in artificially decreasing border numbers.  The expanded categorical parole programs for nationals of Venezuela, Cuba, Nicaragua, and Haiti are wholly unlawful.  

“Lastly, the vast number of pending matters presently before USCIS will only increase if border prioritization for adjudicators is not stopped. While the agency claims to want to reduce this number, actions speak louder than words.  It was recently reported that USCIS adjudicators were being shifted from their assigned work in order to support operations along the southwest border. 

“The Biden Administration has taken many measures in the past two and a half years aimed at addressing the border crisis. However, it appears that no one thought to simply enforce the law as written.   Instead, the Department has, through its own actions, created the worst border crisis in American history.  A return to the rule of law is the only cure at this point and it is incumbent upon Congress to use its oversight and lawmaking authority, to repair the damage done by the Department.”

Edlow’s written testimony can be accessed here.

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