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Immigration system isn’t broken, just ignored, former immigration judge says

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The current U.S. immigration system isn’t broken, laws established by Congress are being ignored, a former immigration judge told members of Congress.

“Despite consistent claims to the contrary, America’s immigration system is not broken. Far from it, in fact,” Matthew O’Brien, a former immigration judge, said at a hearing held by the U.S. Oversight Committee’s Subcommittee on National Security, the Border, and Foreign Affairs on Thursday.

“The problem is that too many administrations have simply ignored whatever aspects of the Immigration and Nationality Act they dislike or find politically inconvenient. And they do so wholly in order to pander to perceived political constituencies, while ignoring the safety, security and economic interests of the wider American public,” he said.

O’Brien previously led the National Security Division at U.S. Citizenship and Immigration Services and was Assistant Chief Counsel with U.S. Immigration and Customs Enforcement.

He said the Biden administration’s “flagrant disregard” for the INA “has currently become the norm” and is “leading us into a public safety and national security crisis from which the United States may find itself unable to recover.”

The INA stipulates that Border Patrol agents apprehend illegal border crossers and process them for removal through expedited removal procedures or detain them pending review by an immigration court or USCIS, with exceptions. Department of Homeland Security Secretary Alejandro Mayorkas, via a memo in 2021, directed agents to a new policy: illegal entry alone was no longer a deportable offense, even though federal law states it is. Florida, Texas and Louisiana sued in separate cases, attempting to stop what became known as “catch and release.” The Supreme Court ruled that states didn’t have legal standing, overruling a lower court that said the states did. A bill was introduced this week to amend the INA granting states legal standing.

Mayorkas also changed parole procedures, including those related to catch and release, which the House Committee on Homeland Security identified as illegal and used as evidence to impeach Mayorkas.

O’Brien said the current administration has engaged in “deleterious behavior to an unprecedented extent” because it has “chosen to ignore the INA in its entirety.”

The current system “is only broken,” O’Brien said, “if one believes that our borders should be open and that we should actively be involved in trying to solicit foreign nationals to come to the United States. Otherwise, we have a perfectly functional set of immigration laws that are highly effective when the agencies charged with implementing them actually apply them as they were written by Congress.”

He said this was done during the Trump administration, which reduced illegal border crossings to record lows.

Ranking member Rep. Robert Garcia, D-Calif., said former president Donald Trump and “MAGA” supporters advocated for building alligator moats, “electrifying the fence along the border,” that “there have been suggestions of shooting migrants in the legs” as a border policy. He provided no source to substantiate his claims, which appear to have come from now-debunked claims made by New York Times reporters in 2019, which Trump said was “fake news.” He also said the people making the claims were “crazy.”

Subcommittee Chairman Rep. Glenn Grothman, R-Wis., pointed out that Mayorkas’ policies led to CBP agents releasing over 75 percent of illegal foreign nationals who were apprehended in December at the southwest border.

More than 370,000 foreign nationals illegally entered the U.S. nationwide in December, the highest number in U.S. history, The Center Square first reported. The greatest number of illegal border crossers were apprehended at the southwest and northern borders in the first quarter of fiscal year 2024 in U.S. history.

Grothman said of the 250,000 foreign nationals apprehended after illegally crossing between points of entry by Border Patrol agents alone, the administration released 190,000. They were released “on their own recognizance with nothing but a notice to appear and a future date,” he said. “That’s a 77% release rate in the month of December.”

Since January 2021, he said the administration, instead of detaining and processing for removal, released more than 3 million “illegal aliens who have no lawful basis to remain in the U.S.” and created “illegal parole programs incentivizing more and more people to come to the U.S.”

Rep. Virginia Foxx, R-N.C., asked if it was possible to thoroughly to vet the millions of people being released into the country. O’Brien replied, “No, it’s not possible at all.”

O’Brien, who ran the vetting program at USCIS, said, “none of the agencies have the capacity to vet people in those numbers. Even more importantly, vetting is something that happens because people have a background that can be traced. In the United States, from the time we’re born till the time we die, we’re laying down paper trail transactions … all of those things can be used to substantiate somebody’s identity. When you’re talking about someone coming from a rural village in Guatemala or places like Yemen, there aren’t any records like that. They don’t exist.”

He also told Congress, “It is time for those who respect our laws to stop allowing the American people to be misled by spurious claims that our immigration system is somehow broken.” Instead, Congress “must force Executive Branch officials to stop deliberately breaking the system in order to achieve their own agendas.”

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