Coming attractions: border violator immunity from prosecution?

The Biden administration has gone to federal court in Austin, Texas, to prevent the Lone Star State from prosecuting border violators for illegal entry and failure to depart.  They have even enlisted a State Department deputy assistant secretary to advocate for Central America and Mexico, instead of Texas.

Overrun by human waves of unlawful migrants and thwarted by the Supreme Court last year in its effort to force federal enforcement of existing law, Texas enacted its own illegal entry law set to take effect on Super Tuesday, March 5, 2024.  The law is known as Texas Senate Bill 4, or SB4.

The Biden lawsuit against Texas and SB4 pending in the U.S. District Court sends a stark message to governors, cartels, and their U.S. enablers:  border violators are immune from state judicial process.  Foreign diplomats never had it so good, and gangs like MS-13, 18th Street, and Venezuela’s Tren de Aragua are surely taking note.  But the Biden initiative against Texas SB4 is just the latest chapter in a continuing saga of immunizing border violators from the consequences of their illegal conduct.  Here is a brief travelogue along the road to impunity.

Since 2021, the Biden administration’s assertion of unprecedented prosecutorial discretion to nullify the Immigration and Nationality Act has attracted over 8 million border violators.  Within the United States, it led the Biden team to direct government lawyers to abandon tens of thousands of well-founded deportation cases and dismiss them from Immigration Court.  Some involve violators with adverse criminal histories or prior deportations.  When will border violators excused by the Biden administration be held accountable?  Maybe never.

Federal courts contribute in other ways to border violator impunity.  Thanks to the U.S. Supreme Court, thousands of pending deportation proceedings have been terminated from Immigration Court.  Why?  Because overtaxed immigration officials issued charging documents and Immigration Court hearing notices to violators in two documents instead of one.  Madness.

Male border violator convictions for assaults on women are no longer sufficient, standing alone, for deportation, thanks to another federal court decision affecting Texas.  In 2023, the same Supreme Court that recognizes border violator standing to sue immigration authorities denied standing to Texas and Louisiana when they sued the Biden team to enforce the law at the border.

Congress, too, contributes to border violator impunity.  Take, for instance, the Temporary Protected Status (TPS) juggernaut, which has encouraged and perpetuated unlawful presence since 1990.  There is nothing “temporary” about TPS.  Congress has also failed to repeal the “non-return” doctrine, a consequence of U.S. acceptance of the 1967 U.N. Refugee Protocol.  The doctrine perpetuates asylum fraud and is a key reason for our nation’s loss of control over its border with Mexico.  To regain control of the border our next president should immediately remove the United States from the 1967 Protocol.

Congress missed another opportunity to do the right thing recently with the tragic Capitol Hill “border security” charade over H.R. 815, the emergency defense supplemental appropriations bill.  Why a charade?  The solution to the Biden border crisis is not new law.  Rather, it is to cut off funds to Biden programs that suspend existing law.  Instead, the Senate meekly accepted draft legislation from administration “technical advisers” that is plainly unrelated to the current crisis.  Border violators and their U.S. enablers emerged unscathed from the H.R. 815 circus.

Americans must stop kidding themselves.  Since 9/11, the general immigration enforcement trend has been no enforcement at all.  Open border pressures have mounted.  Boiled down, our collective government response across all three branches has been to “abolish ICE” openly or through exaltation of prosecutorial discretion to end entire categories of enforcement.

Now we have reached a new stage with Biden administration litigation in the federal court in Austin against SB4.  In practical effect, if it succeeds, the Biden lawsuit will elevate border violators to the same status as foreign embassy officials assigned to the U.S. who enjoy “diplomatic agent” status.  Diplomatic agents are immune from all state judicial processes in the United States, including state prosecution for criminal conduct.

If Joe Biden succeeds in driving a stake through the heart of SB4, another milestone will be reached in the national trend toward full border violator impunity.  To get there, unfortunately, the Biden-Obama immigration team has had plenty of help from both political parties, all three branches of government, and an army of private immigration activists.

The author is a Texas lawyer and Navy veteran of submarines and Iraq.  He has extensive experience on the border, in immigration, and with the U.S. Senate.

Image generated by AI.