GOP lawmakers warn 'unconstitutional' Biden asylum rule will fuel migrant surges at the border

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FIRST ON FOX: Dozens of Republican lawmakers in the House and Senate are sounding the alarm about a proposed rule by the Biden administration that they call "unconstitutional," contending it would lead to further migrant surges at the border and fulfill what they call a Biden promise to implement "open borders."

"The proposed rule represents a blatant violation of the laws passed by Congress," 68 congressional Republicans led by Sens. Ron Johnson, R-Wis., Mike Lee, R-Utah and Rep. Andy Biggs, R-Ariz., say in a public comment on the rule. "It ignores the mandatory detention requirements of aliens claiming asylum through mass parole, violates the principles of separation of powers and inappropriately shifts the roles of asylum screeners and immigration courts."   

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The rule, announced by both the Department of Justice and Department of Homeland Security in August, would allow U.S. Citizenship and Immigration Services officials at the border to decide asylum claims — initially bypassing immigration courts within the DOJ.

The USCIS officer could then decide the case quickly. If the case is denied, the migrant can then request a review under a streamlined process with a further appeal available. Only if that appeal failed would the migrant potentially face deportation.

The rule loosens parole limits, allowing DHS to grant parole when "detention is unavailable or impracticable." The use of parole, a form of temporary legal status, was intended to be used on a case-by-case basis. Fox News reported that so far 30,000-plus migrants have been paroled into the U.S. since August alone.

The Biden administration noted that the number of asylum claims "has skyrocketed over the years," leading to backlogs and delays and says the rule will speed up that process.

"Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed," DHS Secretary Alejandro Mayorkas said in August. "We are building an immigration system that is designed to ensure due process, respect human dignity and promote equity."

But the Republicans take aim at the rule for being unconstitutional, harmful to the country and a process that should go through Congress rather than the executive.

In particular, the comment says the rule would expand the authority for parole beyond that authorized by Congress, noting that the Immigration and Nationality Act limits parole authority to a "case-by-case basis for urgent humanitarian reasons or significant public benefit."

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"If Congress had intended to give the Secretary authority to grant parole during the expedited removal process for these reasons, it would have done so in the statute," the lawmakers say. "It did not."

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The lawmakers also say the rule ignores the congressionally-mandated requirement that migrants claiming asylum be detained, rather than released into the U.S., as well as mandatory bars that would exclude certain migrants from asylum. Those bars include if the migrant can be removed to a third safe country if he had been previously denied, if he had been convicted of a serious crime and if he settled in a country prior to arriving in the U.S., among others.

The lawmakers point to the dramatic surge in migration at the border, which has coincided with the reintroduction of "catch and release" and the rollback of Trump-era border policies by the Biden administration. The administration has blamed root causes like poverty and corruption in Central America, but Republicans say it has increased the "pull factors " bringing migrants north.

In the comment, they argue that moves to release migrants into the U.S. only "encourages more aliens to migrate illegally to the United States to make credible fear claims. Human smugglers are acutely aware of this loophole and exploit it with impunity."  

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"The departments should not create by regulation yet another pull factor that will further encourage the misuse of the asylum process," they say.

They go on to argue that the rule is a fulfillment of what they describe as "a Biden campaign promise for open borders" and will "result in continued surges of illegal immigrants at our southern border."

"The fact that it would fulfill the campaign promises of President Biden for open borders and lax immigration enforcement does not make it legally defensible; at most, that fact tells us why this administration is considering such a lawless step," they say.

In separate statements, the lawmakers leading the push made it clear that they see the rule not as one that would encourage efficiency and order, but one that would only encourage more illegal migration at a time where there were more than 200,000 migrant encounters in July and August alone.

"This is a blatant violation of the laws passed by Congress," Sen. Johnson said in a statement. "In a year where we have surpassed 1.5 million apprehensions at the southern border, the proposed rule will only lead to more illegal migration for an already overwhelmed immigration system."

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"The Founders entrusted Congress, not unelected bureaucrats, with the sole power to legislate," Sen. Lee said. "Members of Congress are accountable to the people, and can be voted out of office. Bureaucrats are not nearly as vulnerable or accountable. Despite alleged expertise, when bureaucrats craft law, their short-sightedness or their own interest all too often overshadow what would be best for Americans."

"This rule, drafted by an unaccountable elite, is a prime example of failure to serve the best interest of the American people," he added.

"President Biden created a crisis at the border on his first day in office by systematically undoing President Trump’s successful policies," Biggs said. "This proposed rule is simply the latest action by the Biden administration to weaken our border security and allow illegal entrants from more than 100 nations into our country."

It is one of a number of scathing public comments submitted by conservatives about the rule. The Federation for American Immigration Reform and America First Legal have both submitted public comments blasting the rule and warning that it would fuel even more migration to the border.