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The Secure Fence Act of 2006 mandates that DHS prevent all illegal entries

April 8, 2022 By D.A. King

Illegal aliens at the southern U.S. border, 2021 Getty

Why Isn’t Anyone Talking About the Most Important Border Law?

The Secure Fence Act of 2006 isn’t just about fences — it mandates that DHS prevent all illegal entrie

Center for Immigration Studies

By Andrew R. Arthur on April 8, 2022

The Southwest border, which prior to January 2021 was in pretty good shape, is teetering on dissolution due largely to President Biden’s ham-handed rescission of nearly all of the policies his predecessor implemented to deter illegal migration there. States have sued (thus far, successfully) to block Biden from rescinding the most effective of those Trump policies, but for some reason neither they nor reviewing courts have paid attention to the most important border law — the Secure Fence Act of 2006.

Background on the Secure Fence Act. Its title notwithstanding, the Secure Fence Act is not just about building fences at the border, although that is what it is best remembered for.

Rather, the fences and other infrastructure that the bill authorized and mandated were intended to be just a part of a regime to secure the nation’s borders, and in particular the Southwest border. That’s not to say that the Northern border was given short shrift, but the bill simply authorized a study of the need for and feasibility of erecting infrastructure along the 49th parallel, it did not mandate construction there.

By contrast, the Secure Fence Act was rather exacting (and specific) when it came to “fencing and security improvements” between the Gulf and Mexico and the Pacific Ocean.

The bill identified five different areas at the Southwest border where Congress required DHS to construct at “least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors”, and specified two “priority areas” for expedited attention.

Again, however, that border infrastructure was just a means to an end — not an end in itself. Congress’s end, identified in Section 2 of the bill, was “achieving operational control on the border”.

The “Operational Control” Mandate. What is “operational control on the border”? Section 2(b) of the act defines it as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”. (Emphasis added.)

Given the fact that Border Patrol agents at the Southwest border were so overwhelmed apprehending, processing, and caring for more than 1.659 million illegal migrants in FY 2021 (an all-time record) that more than a half-million others “got away” and entered the United States illegally, preventing the “unlawful entry” of any illegal migrant might seem like a purely aspirational pipe dream.

But it’s not. It is a congressional mandate that the secretary of Homeland Security is required to meet under Section 2(a) of the Secure Fence Act, which states as follows:

Not later than 18 months after the date of the enactment of this Act, the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.

The Secure Fence Act of 2006 was enacted on October 26, 2006 (I described the entire legislative history of the bill in an August post), which meant that then-DHS Secretary Michael Chertoff had until April 26, 2007, to meet that “operational control” goal.

That said, the mandate did not end on April 26, 2007. It is ongoing and has bound Chertoff and his five permanent (and numerous acting) successors, up to and including current DHS Secretary Alejandro Mayorkas.

There is no “sunset provision” in the Secure Fence Act that would have repealed that mandate at a date certain, or after operational control was achieved once.

In fact, the Secure Fence Act requires the DHS secretary to submit a report “on the progress made toward achieving and maintaining operational control over the entire international land and maritime borders of the United States in accordance with” Section 2 therein annually. If Mayorkas has not simply blown off that requirement, that is one report I would love to see.

To be clear, Section 2 of the Secure Fence Act mandates that Mayorkas “take all actions” he has to in order to “achieve and maintain operational control over the entire international land and maritime borders of the United States”, that is, to prevent even a single alien from entering the United States illegally. More than 500,000 got-aways proves that he is failing to do so.

Of course, it is not just those 500,000 got-aways who have entered the United States illegally. Mandatory court filings in Texas v. Bidenreveal that the Biden administration has released hundreds of thousands of illegal migrants CBP has apprehended into the United States in recent months. Every one of those releases is also in violation of Section 2 of the Secure Fence Act of 2006.

Why The Secure Fence Act Matters. So, why does a 15-year-old (plus) bill matter in 2022?

To explain, it is important to note that the Secure Fence Act focuses exclusively on operational control of the border, not on DHS’s actions in any given case.

Biden’s DHS contends that it has the authority to simply release any illegal migrant that it apprehends at the Southwest border in the exercise of its “prosecutorial discretion”. That is, at best, a questionable proposition, given the fact that “prosecutorial discretion”generally refers to the power of the state to “prosecute” an offense, or not.

As ICE’s legal branch (somewhat self-servingly) explains the concept, “prosecutorial discretion” is “the longstanding authority of a law enforcement agency charged to decide where to focus its resources and whether or how to enforce the law against an individual”.

With respect to all those hundreds of thousands of aliens apprehended at the Southwest border, DHS does not really have the discretion not to prosecute them — they are by statute “applicants for admission”, and either DHS or the immigration courts have to decide whether they will be admitted.

But even if DHS had the discretion to decide how and when to make that admission determination, “prosecutorial discretion” does not extend to a decision to release them en masse as it is doing now. Congress has already made clear that they must be prosecuted to determine whether they should be admitted. At that point, I would argue, “prosecutorial discretion” ends.

Why would I argue that? Because Congress has also mandated that illegal migrants be detained while that admission determination is being made, negating any claim that “prosecutorial discretion” allows DHS to release aliens seeking admission, except for one at a time on “parole”. But even that authority is tightly cabined statutory discretion, not “prosecutorial discretion” per se.

Assuming, however, for the sake of argument, that DHS has the discretion to prosecute illegal migrants (or not) and to release them (or not), remember how ICE’s lawyers described “prosecutorial discretion” above — the authority to decide “how to enforce the law against an individual”?

The “operational control” mandate in the Secure Fence Act of 2006 is not amenable to any such “prosecutorial discretion”,… read there rest here.

 

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Private school tuition: A new state benefit for illegal aliens in GA? #SchoolChoice

January 24, 2023 By D.A. King

 

 

 

 

 

 

 

 

 

“It is testament to the tenacity, funding and power of the school choice advocates that including illegals in a proposed new state benefit program is even being discussed.”

A battle is coming between the Georgia Republicans who are pushing “school choice” at any cost and pro-enforcement conservatives who refuse to reward and encourage more illegal immigration into Georgia. Expanding benefits for illegal aliens does exactly that. The lobbying money is on the “include the illegals” side. All too often, the truth isn’t.

Despite what Georgians may be told, the 1982 Plyer V Doe Supreme Court decision only requires states to provide public school tuition to K-12 students regardless of immigration status.

A word of experienced advice to readers who may favor “putting parents in charge of education…” but take the pro-enforcement view of the debate: You can save yourself a lot of attacks as being “anti-school choice” if you make clear your opposition to rewarding illegal immigration early in any discussion on the topic.

We don’t allow illegal aliens to access the Hope Scholarship, the Zell Miller Scholarship, or instate tuition in our taxpayer-funded public colleges. Why do some Republicans want to welcome illegal alien families with discretionary, taxpayer-funded K-12 private school benefits? It is testament to the tenacity, funding and power of the school choice advocates that including illegals in a proposed new state benefit program is even being discussed.

This writer attended a seminar on school choice last fall in Marietta and got the “whole enchilada” presentation and was surprised to see several well-known Georgia Republicans -including former U.S. Senator Kelly Loeffler – featured as presenters. I still don’t know the answer to the above question. But I can report that the ongoing illegal immigration catastrophe was completely avoided in the program and there was no Q&A session. I did hear it said that “we are all Americans.”

  • Related: School choice legislation is likely from Georgia lawmakers this session

We are not aware of any position the new leadership under the Gold Dome has taken on delivering state funds to illegal alien families for use as K-12 tuition payments to private schools. A great deal of time and trouble could be saved if Georgians could get a signal on this from the new Speaker or the new Lt. Governor – or Gov. Kemp.

Influential national radio show host Erick Erickson predicted a win for commonsense: “I’m fairly certain the Republicans aren’t going to fund illegal aliens going to private school…” was part of the response from Erickson last year to an on-air alert from this writer about the absence of language to exclude illegals in then-pending state legislation.

Soon after that public forecast from Erickson, there were various versions of poorly written and unworkable language purporting to exclude illegal aliens from the proposed “school choice” legislation offered in three separate bills in 2021-2022 General Assembly. So, it’s clear that most members of both chambers are aware of the concern.

Readers who have not heard one of the school choice sales programs for what is also known as “educational freedom” and “fund students, not systems” may want to consider attending an Americans for Prosperity event on the matter this evening in Alpharetta. It looks like presenters will include lobbyist and former GOP state Rep Buzz Brockway and Forsyth County school board member Mike Valdes.

If you go: I’ll wash your car if you let us know if there is any mention of illegal immigration or that according to the U.S. Dept. of Homeland Security, there are only six states with a higher illegal population than Georgia.

One online advertisement for the AFP event includes a reminder of a January proclamation of “School Choice Week” (Jan 22-28) from Gov. Kemp. The proclamation does not say if the governor would sign a bill that provides state funds for future “undocumented workers” to pay K-12 private school tuition.

Neither does it say if a law that excluded illegal aliens from any state-funded school choice benefit would be enforced. Many state laws aimed at illegal immigration aren’t.

  • A version of this essay ran posted on the subscription website Insider Advantage, January 24, 2023.

D.A. King is proprietor of ImmigrationPoliticsGA.com and president of the Dustin Inman Society.

 


D.A. King talks amnesty, “hate” and “immigrants” with Jorge Ramos on Univision

https://youtu.be/w6FPMn0h4fk

Brian Kemp’s first TV campaign ad, 2018

https://youtu.be/Gx7TsHCH35w

Dustin Inman Society page A-1, New York Times

Photo: New York Times/Twitter

John Stossell: The Southern Poverty Law Center is a scam

https://youtu.be/k41PI54ExFc

The Great Terry Anderson (RIP) on illegal immigration in Los Angeles. – 2009

https://www.youtube.com/watch?v=dUEl8WYDDus

Terry Anderson video, part 2 – Birthright Citizenship

https://www.youtube.com/watch?v=6SS-5u8CMB4
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Photo: mdjonline.com

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