This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
Kabuki is a form of Japanese theater, in which actors — through exaggerated gestures, colorful costumes, and dramatic recitation — convey a story to their audience. It is a high art form.
Kabuki is also a derisive term for Washington posturing, in which politicians — through exaggerated gestures, colorful costumes, and dramatic recitation — convey a story to their audience. It is a low art form.
The new Biden executive order, which purports to ‘secure the border,’ is the second kind of kabuki. It says a great deal and conveys a story, but means very little.
First, we’ll tell you what it says, and then, we’ll tell you what it (probably) doesn’t mean.
On June 3, 2024, President Biden signed A Proclamation on Securing the Border, which suspended entry into the United States by noncitizens unless certain conditions are met. Those conditions are, roughly, as follows:
- The suspension is in effect as of June 5, 2024.
- If the Secretary of Homeland Security determines that the average number of ‘encounters’ at the border over a rolling seven-day period is less than 1,500 per day, then the suspension shall be discontinued.
- If the Secretary of Homeland Security determines that the average number of ‘encounters’ at the border over a rolling seven-day period is greater than 2,500 per day, then the suspension shall be reimposed.
- The proclamation does not apply to green card holders, trafficking victims, visitors to the United States who hold valid travel or employment visas, or holders of other lawful immigration documentation.
- The proclamation does not apply to unaccompanied alien children (UACs) who are traveling from countries other than Mexico and are traveling without a parent or guardian.
- The proclamation does not apply to any noncitizen who is permitted to enter by the Secretary of Homeland Security, acting through a CBP immigration officer, due to operational considerations at the time of the entry or encounter that warranted permitting the noncitizen to enter.
If a noncitizen crosses the border anyway, and applies for asylum, he is ineligible for asylum, unless:
- He faced an acute medical emergency at the time of apprehension, or had a family member who did, or,
- He “faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder” or, again, had a family member who did.
- He was a victim of human trafficking.
Now, here’s why the executive order is likely to be meaningless in practice.
The Exceptions Swallow the Rule
Exception #2, above (“imminent threat of rape, kidnapping, torture, or murder”) covers a very large number of asylum claims. Border officials will be unable to prevent asylum applicants from applying for asylum if they claim to be subject to this exception, and many (quite obviously!) will claim as much.
Condition #6, above (“any noncitizen who is permitted to enter by the Secretary of Homeland Security… due to operational considerations”) vests the Secretary with effectively full authority — as immigration restrictionists have pointed out — to suspend the suspension. The Secretary has already used his authority quite expansively with respect to the use of humanitarian parole. He may do so again in this new context.
The Executive Order Will Be Enjoined
In November 2018, President Trump issued a very similar executive order. It was enjoined. The Biden Administration is not stupid. They know that civil libertarians will sue, and they know that a similar injunction is likely to follow.
Why, then, issue the executive order? It’s kabuki. The Biden Administration wants the electorate to think that it is taking firm action on the border. When immigration restrictionists react to your immigration proposal by telling you that it is unworkable, and advocates of increased immigration react to your proposal by telling you that it is unworkable, you should worry about your proposal’s practical effects — if practical effect is your goal. If you want to send a message through theatrical gestures, on the other hand, such criticism rather misses the point.
As always, we are grateful for your questions and comments, and will do our best to respond.
