Why Our Border Is Broken

The credible fears at the border.

By and
136

Sarah and David dive deep into the state of immigration law and Texas Gov. Greg Abbott’s legal battle with the Biden administration.

The Agenda:
—Amicus briefs for funsies
—The asylum system problem
—How to fix the crisis at the border
—The border deal in the Senate
—Civil War cosplay
—National Guard and Texit detour
—Football vs. politics redux

By and
Comments (136)
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  1. Avatar photo
    Erik Martin

    On the point that once someone claims asylum after crossing the border illegally, that that crossing is no longer illegal, can anyone please point me to the statute or the case law that makes that the case?

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  2. Bobby D

    I listened to this with one question in mind: Does the current catch-and-release policy reflect a reasonable interpretation of our asylum laws? In other words, was Judge Wetherell correct in his March 2023 opinion on the issue? David seemed to suggest that the policy is illegal but otherwise excusable because compliance with the law may be cumbersome.

    I agree that we should update our asylum laws. For example, it probably makes sense to require that asylum applications be filed abroad, preferably in the country of the asylum seeker’s residence. But it just doesn’t seem like the Biden administration is using every legal means available to reduce the number of people flooding across the border on a daily basis. I find it hard to believe that the administration can’t do anything to ameliorate this.

    Also, I don’t understand why we can’t use Defense money to deal with this. Given how little vetting we’re doing at the border, I suspect that enemy agents have blended into the migrant flow and passed into the US. Bret Weinstein recently reported on his trip to Darien. He noted the the northbound migrants included a large number of Chinese migrants. And, unlike the other migrants, the Chinese were disproportionately fit young men of military-service age. Is it possible that the PLA is using the border chaos to build up a forward strike force within the borders of the US? Well, we don’t know because we’re just waiving them through.

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  3. William S.

    A hot take from a former State Dept. Consular Officer:

    Fans of the asylum debate will know that the issue mostly falls to DHS/USCIS but as someone who was working in U.S. embassy consular sections during much of the Trump administration, I have my two cents to offer on this issue, so for what it’s worth:

    Clearly, many claimants to asylum are just economic migrants who are using the asylum process because they have heard that it worked for their friend, neighbor, cousin, etc. I remember processing a ‘follow to join’ visa (for family members of someone who had previously arrived to the U.S. and had been granted asylee/refugee status) and I asked out of curiosity what was the issue which drove the husband to claim asylum in the U.S. – I was conducting the interview in a wealthy Persian Gulf country, the family was from the Horn of Africa but had been safely living and working in the Gulf for some time – and the wife responded rather matter of factly, “oh well, he was just looking for a job”. Because of the division of responsibility between State and DHS and the ensuing turf battles and such, State isn’t in a position to re-adjudicate the principal applicant’s status, so their visas were issued.

    Domestically based USCIS asylum officers are professional and well meaning, but they are hampered by legal structures (as noted in this good episode) and they sometimes lack the knowledge of local conditions that folks like Consular Officers posted overseas would have better access to. Moving the asylum process from a domestic one (even if it’s just for certain nationalities) to an application submitted at a U.S. Embassy abroad would massively reduce the incentive structure which is leading to the situation that we see today at the southern border. Congress could deploy USCIS personnel at U.S. Embassies in Central America, we could shunt folks into something akin to the refugee program and cap the number numerically – there are a number of ideas which could make this all infinitely more orderly and still allow the U.S. to accommodate those fleeing ‘credible fear’ of persecution – however we define this.

    A last point on Speaker Johnson’s letter to the Biden Administration claiming that the admin already has the legal basis to ‘secure’ the border – by which I assume he means a ‘national interest’ denial to potential claimants. In the consular world this was known as a “212(f)” refusal, used most famously in the so-called “Muslim Ban” (we called it PP9645) during the early Trump Admin. The funny thing about the “Muslim Ban” is that it wasn’t much of a ban at all. After all the legal back and forth, the courts carved out exceptions and waivers for almost all folks seeking immigrant status, which is basically what asylees are seeking. I think Johnson knows that this 212(f) lever doesn’t have the kind of leverage that he is publicly asserting but politics being what it is these days......

    Sarah and David are correct, at this point only a proper legislative change will do.

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  4. Kathleen.Brown2021

    Ok I watched American Nightmare at your suggestion Sarah!! Holy cow. Nightmare indeed. Can’t wait to hear you and David break this down.

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    1. Nejcik

      Did this ever happen? I don't listen to every episode but I wanted to hear this....can't see any mention of it in the episode notes, or did I miss it?

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  5. Kim Manh

    There are a lot of idiot football fans, no doubt, but with the proliferation of All32 and all the podcasts coach blogs/videos out there, the growth of the sophisticated fan base has increased greatly. I'm not a super sophisticated fan, but I understood EVERYTHING that college lineman wrote. And I know tons of fans/coaches/players who are NFL fans and know it too, but maybe it's because I'm a Texan. It's just a lot more fun to get into football nerdery than political nerdery, even though the latter is more needed in our society.

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  6. Eaechols

    I'm a big fan of this podcast and Sarah I greatly respect your ability as a lawyer, but you guys should not have tackled immigration law without an expert. You have mistated, sometimes significantly, how immigration law works.

    For one thing, saying "credible fear" is not saying magic words. That is not how it works. Expressing a fear of returning does trigger a process, but it is NOT a question of magic words. Nor does further review of the person's fear turn on "credible fear." Credibility is one central issue throughout, but once you are being processed for a fear-based claim the heart of the issue is why will you face persecution in your home country. Most claims fail in the end not because of the credibility or honesty of their fear, but because asylum law does not include protecting people from a fear of generalized crime or poor/exploited economies. 99% of the folks from Central America or Venezuela do not need to be prompted to say they fear these things. Suggesting people are always or even mostly making these claims disingenuously is unfair. It IS a problem though that it takes SO LONG to get to a final arbiter who can say, "regrettably, we cannot protect you from generalized crime or your home country's exploited economy, you must depart the US". As you say, the only solution to THAT problem is funding and people.

    You guys are so excited about the idea of immediately removing people once a daily cap is reached that you forgot what you just pointed out. That new rule will do NOTHING without very significant funding, especially for non-Mexicans.
    You also don't consider whether such a rule is legal under the US's international law commitments to asylum (and I doubt it is).

    Sarah, you fall for the old trap: there is no such thing as a fully secure border. Stop holding that up as an ideal. That is pure political speak. We will always be able to improve border security.

    I have more objections, but I will stop there. Y'all are both people of good faith, but, respectfully, you disserve your audience wading into this issue without an expert or at least with huge caveats and greater humility. It is all the more surprising to me because of the great care you usually take when discussing complex laws. Please know I make these comments because I care and I think you do too.

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    1. Avatar photo
      Sam.Scowcroft.Matthews

      I came here to say this exact same thing, so I’ll just pile my agreement on here. Also, if Sarah and Special Guest David do want to get an immigration expert on the podcast, I’d strongly recommend they reach out to Kevin A Gregg, who hosts the Immigration Review podcast. Super knowledgeable, great voice for podcasting, and seems like a really nice guy (from what I can tell listing to his podcast).

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    2. Kim Manh

      And I agree that there is no 100% secure border, but a sovereign nation must be able to define its boundaries, and releasing over 1 million asylum seekers into Texas every few years is untenable.

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    3. Kim Manh

      Per the US commitments to asylum, I think Sarah would argue that there is no international law, per her philosophy. So the legality would be based on US asylum laws passed by Congress, which can be amended, by Congress.

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      1. Bobby D

        Exactly. These international obligations are not self-executing: They require implementing legislation.

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  7. Johnbrennan722

    Football knowledge is massively higher than political knowledge because there are so many more tangible results. Every week football has a winner and a loser and the statistics generated during those games help explain how it happened. Even the most casual fan can know or ascertain that the Chiefs are good, the Panthers are bad, and the Jets have struggled at the quarterback position. There is plenty for fans to debate about - we should have drafted player X or blitzed more often - but the parameters of those debates are constrained by lots of factual information and outcomes.

    Elections happen every 2 to 4 years and those are the few concrete results we get in politics so politicians, pundits, and the public can think and say ludicrous things with few constraints by reality. And boy do they.

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    1. Bobby D

      I’d suggest that actual knowledge of the game is quite low. What people know about the game mostly concerns knowledge of the entertainment product that the TV networks put out. I stopped watching the NFL a few years ago, as it was painfully apparent that the league was putting its finger on the scales to create a more entertaining product. Even a casual observer can easily see that the NFL appears to be falling over itself to make Patrick Mahomes the face of the league and to the Kansas City Chiefs as the new “America’s Team.” And that was before a certain ubiquitous entertainment figure starting dating a Chiefs player. IMO, the whole NFL is an insufferable charade.

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  8. Jrtownson

    If an asylee does not appear in court or othwise does not comply with asylum process, do you still consider them “legal”.

    It seems your description of all asylees as legal maybe overly broad.

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  9. GT Taylor

    RE: Joe Biden CANNOT fix asylum
    In your rants for "Congress, do your job," you have stated that the President and Administrative branch fills the void out of 1) necessity and/or 2) design. In December of 2018, Bill Barr was announced as Donald Trump's next US Attorney General. The press at that time described Barr as an advocate for an American "Imperial Presidency". With all of the attention laser focused upon the White House/President's actions or inactions, have we already passed to the "Imperial Presidency" even without a second Trump administration? Or are there enough barriers preventing it?

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  10. Avatar photo
    Dave in Houston

    This pod should be required listening for anyone who wants to talk about the situation on the border and what to do about it. I knew a lot of what is being said -- including by people who should know better (and probably do) -- wasn't correct, but I was really just piecemealing things together that I'd read, with the caveat that I'm not a lawyer. This was excellent.

    To the football/politics thing: I get what your emailer was saying, and I like David's response, but put aside the ignorance that David speaks of, and he's still right. What the email listed was very complicated, and as David said, you don't need that level of detail to knowledgably watch and enjoy a game of football.

    What the emailer was ignoring was that much of politics involves the law, and there's 𝙣𝙤𝙩𝙝𝙞𝙣𝙜 more complicated than the intricacies of government workings, legislation, parliamentary procedure, statutes, common law precedent, and so on. And deep as he went on the intricacies of a football play, one can go far deeper into the intricacies of legislation, the Constitution, etc.

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