Obama probably was referring to the concern the Framers of the U.S. Constitution had about how much power the president would have. According to Professor Michael McConnell, they wanted a president who would be powerful enough to do the things expected of a president, but not one who would, in effect, be a king.

They resolved this problem by dividing the government into equal separate branches, each of which has separate, independent powers. Importantly, Congress has the ability to remove a president who commits an impeachable offense.

Article 1 established the legislative branch, which consists of the House of Representatives and the Senate. Congress, in addition to other enumerated responsibilities, is responsible for creating laws.

Article 2 established the executive branch, which consists of the president. The president approves and carries out the laws created by the legislative branch. This article has a Faithful Execution Clause that provides that the president “shall take Care that the Laws be faithfully executed.”  

Article 3 established the judicial branch, which is charged with interpreting the laws passed by the legislative branch.

The oath of office presidents take requires them to swear that they will “support and defend the Constitution of the United States.” President Joe Biden’s rejection of the enforcement and border security provisions Congress enacted seems to be a violation of that oath.

The actions he took on Day 1 of his presidency indicate that his objective from the beginning has been to revise the civil immigration enforcement provisions in the Immigration and Nationality Act, not to faithfully execute them. And he has succeeded. There is very little similarity between Biden’s enforcement measures and the enforcement provisions Congress enacted.

His secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, issued a memorandum outlining new Guidelines for the Enforcement of Civil Immigration Law. The memorandum asserts that most of the deportable immigrants in the U.S. have been contributing members of their communities for years. “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” The guidelines focus enforcement efforts instead “on those who pose a threat to national security, public safety, and border security and thus threaten America's well-being.”

But Congress made being “present in violation of law” a deportation ground without regard to whether a migrant’s unlawful presence threatens America’s well-being. It’s not a requirement for any of the other deportation grounds Congress enacted either.

The public safety segment of Biden’s enforcement system is a problem too. Only one of the classes of “deportable aliens” that Congress enacted requires establishing that the offense deportability is based on “endangers public safety.” If Congress had wanted “a threat to public safety” to be required for all of the classes, it would have included that requirement in all of them instead of just in one of them.

A president has to exercise discretion in choosing which deportable migrants to put in removal proceedings, without a doubt, but I don’t see how it can be said that a president is taking “Care that the Laws be faithfully executed” when he categorically exempts all migrants who are just deportable for being here in violation of the law from being subject to enforcement proceedings.

The guidelines also categorically exempt deportable migrants who unlawfully entered the United States before Nov. 1, 2020. The deportation provision Congress enacted for migrants who are present in violation of law does not include such a limitation.

These restrictions prevents DHS from initiating enforcement proceedings against migrants who use nonimmigrant visitor’s visas to enter the United States lawfully and don’t leave when the period authorized for their visit has expired; according to DHS’s Fiscal Year 2022 Entry/Exit Overstay Report, more than 853,955 migrants who entered the United States by air or sea overstayed in fiscal 2022.  

This figure does not include overstays who entered the United States at a land port of entry, so the actual number may be much larger. And no one knows how many migrants entered unlawfully before Nov. 1, 2020.

Biden’s disregard for statutory immigration provisions is reflected also in his border security measures.

For example, his administration promulgated a rule to discourage illegal border crossings that blatantly violates INA Section 1158(a)(1), which provides that any alien who is physically present in the United States may apply for asylum, whether or not he entered at a designated port of entry.

The administration’s rule takes that right away from migrants who cross the Southwest land border unlawfully between ports of entry without having (1) availed themselves of a lawful process, (2) presented themselves at a port of entry at a pre-scheduled time using the CBP One app, or (3) been denied asylum in a third country through which they traveled on their way to America.

They are presumed ineligible for asylum unless they can establish exceptionally compelling circumstances that have nothing to do with their asylum claims, such as that, at the time of their unlawful entry, they or a member of their family with whom they were traveling was experiencing a medical emergency or faced an extreme and imminent threat to their life or safety.

According to asylum expert Jeffrey S. Chase, the rule doesn’t create a rebuttable presumption — it creates an outright bar to asylum with three very narrow exceptions. This will result in the erroneous deportation of individuals who face a genuine threat of persecution.

The problem isn’t just that a president is exceeding his constitutional authority. The Framers gave the other branches of the government authority to deal with such a president. So why aren’t they doing it?

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: https://nolanhillop-eds.blogspot.com.

On July 4, Ben & Jerry’s public relations division made headlines by tweeting, “It's high time we recognize that the US exists on stolen Indigenous land and commit to returning it.”

The tweet was widely criticized. But behind the grandstanding and virtue-signaling, there is a deadly serious movement within American and Canadian liberal circles that holds both of these countries to be illegitimate. This movement holds that both the U.S. and Canada should, in some meaningful way, be given back to the surviving descendants of Indigenous people.

By their telling, Indigenous people have been subjected to a unique onslaught of persecution and suffering from the time of Columbus to the present. Included at the tail end of Ben & Jerry's tweet is a link to an article that lays out in all seriousness why Mount Rushmore ought to be given back to the Lakota Sioux Indians, as a preliminary step to the return of the rest of the U.S. to its Indigenous owners.

“This year, let’s commit to returning the United States to its original Indigenous inhabitants,” the article begins. Full stop, no qualifiers. 

This proposition would seem ridiculous and impractical.  At the same time, it has a visceral logic that strikes many readers as watertight on first reflection. This is why the cause is so popular on social media platforms such as Twitter and why people need to understand and arm themselves with counterarguments.  

According to the Ben & Jerry's statement, the Sioux call the Black Hills  “The Heart of Everything that Is,” and they have long been “stewards of the land." This implies that the Sioux have been wise, peaceful, ecological stewards of the Black Hills since time immemorial.  As they put it:   

"Long before South Dakota had become a state, long before the faces of four American presidents were blasted into the side of Mount Rushmore, that mountain was known as Tunkasila Sakpe, the Six Grandfathers, to the Lakota Sioux — a holy mountain that rises up from the Black Hills, land they consider sacred."

This is a romantic tale, and a finely crafted piece of rhetoric designed to tug at the heartstrings. But the cold light of history reveals it to be a modern fabrication. 

In fact, the Sioux migrated to the Black Hills region only about 100 years before making treaties with the U.S. government. The Sioux first appeared in records during the mid-1600s, living about 1,000 miles to the east of South Dakota, in the region of Lake Superior. It wasn’t until the mid-1700s, when the Sioux obtained horses from white traders, that they took to the plains. 

Importantly, it was tribes such as the Ojibwe — not Europeans — who pushed the Sioux from their earliest recorded homeland. Suffering from relentless attacks by the Ojibwe and other Indigenous tribes, the Sioux were pushed farther and farther west. As the Sioux moved west, they alternately traded with, murdered, enslaved and stole land from the tribes who already occupied South Dakota, such as the Kiowa. This kind of land-grabbing was a part of life in pre-European tribal society.

This raises the question of why any part of South Dakota should be given to the Sioux, who themselves only occupied it by conquest, and only a few generations before Europeans arrived. If anything, shouldn’t this land be given to tribes from whom the Sioux "stole" it, such as the Kiowa? 

And if the Sioux have any claim, shouldn't it be to the land near Lake Superior that was "stolen" by the Ojibwe, rather than the Black Hills?

The arguments for restoring land in such a fashion at all appears to collapse under the weight of its own racialist rationale. It is incoherent to believe that only Native American tribes have a right to violently push other people off the land in North America.

By the same token, would it have been acceptable for the Aztecs to push northward and settle Louisiana, even if they enslaved and sacrificed many people from the Indigenous tribes they encountered along the way, as was their practice?

Ben & Jerry's also suggested that the Sioux had to watch helplessly as ‘’their holy mountain, now located on land known as South Dakota, was desecrated and dynamited to honor their colonizers, four white men — two of whom enslaved people and all of whom were hostile to Indigenous people and values.’’ 

Aside from the fact that this "sacred mountain" was merely a hill that the Sioux had been living near for a couple of generations (their belief system held that every mountain was sacred), there is also no basis even for the claim that slavery was "hostile" to "Indigenous values." Slaveholding was an integral and well-documented part of Native American culture before European settlers arrived.

In addition to the raiding and enslavement of other Native American tribes, in which the Sioux specifically participated, other prominent native tribes held African slaves in the 19th century, which led them to side with the Confederacy in the Civil War.

As to the legal claim of the Lakota Sioux to Mount Rushmore, it was settled four decades ago, when the Supreme Court awarded the tribe $105 million for its claim to the Black Hills. That should be the end of it.

Even as the tribal leadership claim poverty, the Lakota Sioux have so far refused to accept this money. It has been accruing interest in a bank account and is by now worth more than $2 billion, or more than $20,000 for every man, woman and child enrolled in the tribe today.

Jeff Fynn-Paul is a professor of Economic History at Leiden University in the Netherlands. His book "Not Stolen: The Truth About European Colonialism in the New World," is available for pre-order on Amazon.

Migrants without visas or other entry documents can install the CBP One app on their mobile phones and use it to schedule an appointment to present themselves at specified southwest border ports of entry. A recent media report shows that 99 percent of the migrants who had these appointments were exempted from Title 42 expulsion and released into the U.S. interior.

CBP has increased the number of CBP One admissions to 1,450 a day.

This shifts the release of undocumented migrants to ports of entry to make it appear that “illegal” crossings are decreasing. “It’s clear the Biden administration’s approach to ‘border management’ is to identify more expeditious ways to process illegal aliens and release them into the interior of the United States,” said Green.

Illegal entries aren’t the only problem. Mayorkas has prohibited enforcement measures against migrants who use nonimmigrant visitor’s visas to enter the United States lawfully and don’t leave when the period authorized for their visit has expired.

According to DHS’s Fiscal Year 2022 Entry/Exit Overstay Report, 23,243,127 nonimmigrant visitors who entered the United States lawfully at air or seaports of entry were expected to depart in fiscal 2022, and all but 3.674 percent left as required by their visitor’s visas.

That seems like a small percentage, but 3.674 percent of 23,243,127 is 853,955 people. This means that the overstays increased the population of undocumented immigrants in the U.S. by almost a million in a single fiscal year.

And there were more than 853,955 overstays in fiscal 2022. The overstay report does not include overstays who entered the United States at a land port of entry. The actual increase in the population of undocumented immigrants may therefore be much larger than a million.

Mayorkas’s Guidelines for the Enforcement of Civil Immigration Law shields deportable overstays from being subjected to enforcement proceedings.

According to Mayorkas, most of the deportable immigrants in the U.S. have been contributing members of their communities for years. “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.”

He focuses enforcement efforts instead on deportable immigrants who pose a threat to national security, public safety or border security. A deportable immigrant may be considered a threat to national security if he or she has engaged in or is suspected of terrorism or espionage, or terrorism-related or espionage-related activities, or who otherwise poses a danger to national security.

A deportable immigrant may be considered a threat to public safety if he or she poses a current threat to public safety, typically because of serious criminal conduct. This determination requires an assessment of the individual and the totality of pertinent facts and circumstances. There may be aggravating factors that militate in favor of initiating an enforcement action. Conversely, there may be factors that militate in favor of declining the initiation of an enforcement action.

Neither of these categories applies to overstays, according to the guidance. And the one for border security doesn’t either, because overstays entered the U.S. lawfully.

A deportable immigrant is not considered a threat to border security unless he is apprehended at the border or a port of entry while attempting to unlawfully enter the U.S., or he is apprehended in the U.S. after unlawfully entering after Nov. 1, 2020.

Who were the 853,955 overstays who entered the U.S. at air or sea ports of entry in fiscal 2022?

These include five groups. The first comprises the 97,632 nonimmigrant visitor overstays for business or pleasure from Visa Waiver Program (VWP) countries. Then there are 504,636 nonimmigrant visitor overstays. Third are 55,023 nonimmigrant overstays among student and exchange visitors. Next come the 45,417 nonimmigrant overstays (excluding those from Canada and Mexico). Finally, there are 151,247 nonimmigrant overstays from Canada and Mexico.

The fact that nonimmigrant visitors are not being put in removal proceedings has only become a magnet for more illegal immigration. 

According to border security expert Todd Bensman, migrants hear about the Biden administration’s lax enforcement policies “from friends, relatives, neighbors, and acquaintances who communicate their good fortune by cellphone calls, texts, chat room discussions, and selfies.”

Lastly, the recent Supreme Court decision on standing to challenge the Mayorkas enforcement guidelines makes it unrealistic to expect federal court intervention. Realistically, if Congress doesn’t make Mayorkas follow the statutory border security and removal provisions in the Immigration and Nationality Act, then no one will.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims. Prior to that, he wrote decisions for the Board of Immigration Appeals for 20 years.

This was my childhood. They all came with nothing, but they cared for me as if I were one of their own. I vowed to fight for them. 

As a neurological surgery resident in San Diego, I recently joined human rights leaders to brief members of Congress and President Biden’s domestic policy advisors on the public health crisis occurring at the U.S.-Mexico border. I was the physician representative of the group, explaining to our elected officials the unnecessary injury and economic burden that new 30-foot barriers are causing.

We urged them to halt construction at Friendship Park, which has been a historic space for binational families at the San Diego-Tijuana border. I fear that these 30-foot barriers will turn this into a place of horrific injuries.

Since the Mexico border wall was raised up to 30 feet, there have been a record number of traumatic injuries from “border falls.” Our hospital costs and hospital stays have also seen a significant rise. Hospital admissions from border falls have increased almost seven times since 2019, and spinal injuries after border falls have cost an additional $26 million.

With the expiration of Title 42, I fear that this trend will only get worse. As a physician, it is my duty to reveal this unnecessary harm and strain on hospital resources. As the son of Mexican immigrants, it is my duty to continue to fight for this vulnerable population.

After my recent visit to Washington, D.C., it was clear that border infrastructure policy is one of the most divisive topics discussed by our elected officials. To be sure, this topic fosters very strong sentiments that can be endlessly debated. However, you cannot disregard objective evidence. For this reason, it is more important than ever for physicians to become ardent advocates and provide a balanced view of the harm from raised border walls.

Our visit did provide a ray of hope. Members of Congress penned a congressional letter urging President Biden to halt further construction of 30-foot barriers at Friendship Park after our briefings. The president’s senior policy advisors also assured us they would brief him on the issue.

This will be a long fight. I am reminded of a border fall patient who had suffered a severe brain injury. His wife and young daughter came to his bedside every day. He had been in a coma for several days when his wife asked me in Spanish, "When will he wake up?" I’ll never forget the horror in their eyes when I responded, "It is very likely that he will never wake up.

These are the people coming here for a better life. These are the people who cared for me as a child. These are the people worth fighting for as a physician.

Physician René Leriche once said, “Every surgeon carries within himself a small cemetery, where from time to time he goes to pray — a place of bitterness and regret, where he must look for an explanation for his failures.”

Now, it is inevitable that I will carry my own small cemetery. But I ask my physician colleagues to join me in this fight, and hope we don’t look back at this filled with regret. 

Alexander Tenorio is a neurological surgery resident at the University of California, San Diego. He is considered a leading expert on traumatic neurological injuries at the U.S.-Mexico border and has worked with human rights groups to advocate for halting height extensions of these barriers. Follow him on Twitter at @AlexTenorioMD.

In January, Texas and other states sued the Biden administration for implementing a parole process that allowed certain Americans and legal residents to sponsor Cubans, Haitians, Nicaraguans or Venezuelans to enter the United States under some conditions. This month, the plaintiff states agreed to delay the decision on their own lawsuit. If their goal is to reduce illegal immigration — or even to reduce the total number of foreigners in the United States — the group of attorneys general led by Texas would be smart to drop their lawsuit altogether.

The debate over the now-expired Title 42 policy and the country’s border crisis overlooks the most remarkable immigration policy success story we’ve witnessed in decades: the parole process for Cubans, Haitians, Nicaraguans and Venezuelans (CHNV).

The Department of Homeland Security launched the Venezuelan parole process in October; in January, it expanded it for nationals of the other three nations. The effectiveness of CHNV is evident. In a report I recently published with the Manhattan Institute, I estimate that the CHNV process has reduced illegal immigration by more than 380,000 people, simultaneously depriving cartels of hundreds of millions of dollars in revenue, and has increased legal immigration by 102,000 individuals.

In essence, the CHNV parole process has served as a powerful tool for curbing illegal immigration by bolstering legal immigration to a smaller degree. This was achieved by compelling immigrants to stay in their home countries and comply with certain requirements before immigrating, resulting in safer, more cost-effective and more efficient immigration.

The simplicity of the CHNV process is a large part of its appeal. Instead of braving the harsh conditions of the Darien Jungle or falling prey to cartels along the U.S.-Mexico border and paying the high cost in time and money of reaching America by land, immigrants can travel cheaply and safely by air. To qualify, they must have a willing U.S. sponsor, and both migrant and sponsor must be vetted to ensure that those who make it to the U.S. are law-abiding and healthy, thereby enhancing public safety and public health.

Despite this evident success, 20 Republican states sued the Biden administration for executive overreach. They argue that parole authority can be used “only on a case by case basis” and that this program doesn’t meet that standard. The Department of Homeland Security argues that not all applications are accepted and many parole programs have existed for decades for specified populations that the secretary deems to meet the legal standard. Indeed, if the CHNV program is found to be illegal, it would establish a precedent banning most parole programs of the past, including the policies that allowed almost every Cuban immigrant in Florida to come to the United States since the 1960s.

Whether legal or not, the CHNV parole process is achieving the goal the Republican states claim they want: reducing illegal immigration. In many ways, the CHNV parole process is the dream of an immigration restrictionist, reducing both illegal and total net migration and ensuring that those who do come are vetted and unlikely to fall into government dependency because they have a sponsor waiting for them.

Some may worry about what will happen to parolees when their two-year parole expires. The answer is that they may apply for asylum or other immigration channels — more options than if they had arrived through the Southern border. And unlike those who sneak in through the border, parolees are easier to find because both they and their sponsors are registered with the U.S. government, making deportation easier if it’s merited.

America must build on the success of the CHNV parole process. To do so, we need to have a program that’s dynamic and responsive to immigration trends. While the initial focus was on Cuba, Haiti, Nicaragua and Venezuela, the program should be modified over time to keep its focus on nations originating the largest numbers of illegal immigrants.

To achieve this, the Department of Homeland Security should track changes in border crossings by country of origin, adding a country to the parole list when border crossings from that country increase consistently and exceed a certain threshold. As an inverse example, border crossings from Haitians are low and the program has admitted more Haitians on parole than it has deterred illegal crossings, so the Biden administration should drop Haitians from the eligible nationalities. However, Colombians and Ecuadorians seem to be showing up at the border at increasing rates.

The Biden administration is showing signs of understanding this. They recently announced that they would begin implementing a parole program for family members of Americans in Colombia and Central America. But to be eligible for this program, migrants must have an approved family petition from a parent or sibling who is a U.S. citizen, and most illegal immigrants who show up at the border are not in this category. While this program may be worth implementing in its own right, it won’t reduce illegal immigration like the CHNV process has. Instead, United States Citizenship and Immigration Services (USCIS) should just add the countries it wants to target to the existing CHNV process.

The key to addressing our immigration challenges lies in constructive solutions like the CHNV parole process. If we can build on the success of parole programs, we can turn our immigration system into one that is both stricter and more orderly but also fairer and more humane. This is what Republican states should be calling for, not suing to block.

Daniel Di Martino (@DanielDiMartino) is a graduate fellow at the Manhattan Institute, a Ph.D. student in economics at Columbia University and the founder of the Dissident Project, a speakers’ bureau for young immigrants from socialist countries.

The justices who voted for this decision have shielded Biden and every future president from judicial review of their immigration enforcement policies.

Legal actions cannot be brought in federal court solely because an individual or group is displeased with a government action or law. A lower court found that the states in this case are injured by the challenged enforcement policy because it results in additional state expenses, and monetary costs are an injury. But the Supreme Court has stressed that the alleged injury must also “be legally and judicially cognizable.” This, of course, is subject to interpretation based on the facts of a particular case.

In his opinion for the majority, Justice Brett M. Kavanaugh framed the dispute as an effort by Texas and Louisiana to obtain a court order that would require the Department of Homeland Security to “alter its arrest policy so that the Department arrests more noncitizens.” But the states have cited no precedent, history or tradition of federal courts entertaining lawsuits of this kind. In fact, the Supreme Court has held that “a plaintiff lacks standing to bring such a suit when he himself is neither prosecuted nor threatened with prosecution.”

The states argued that the Biden administration’s enforcement guidelines contravene two federal statutes, section 1226(c) of the Immigration and Nationality Act (INA) and INA section 1231(a)(2).

The first section provides that the "Attorney General shall take into custody” certain migrants when released from state or local custody, who:

• Are inadmissible on specified criminal grounds;
• Are deportable by reason of having committed a specified criminal offense; or
• Are inadmissible on specified security and related grounds or deportable for terrorist activities.

The second section provides that the Attorney General shall detain migrants subject to a removal order during the removal period. It specifies that, “Under no circumstance during the removal period shall the Attorney General release an alien who” has been found inadmissible under specified criminal and related grounds or deportable for specified criminal offenses or on security and related grounds.

The Supreme Court’s decision holds that the states do not have standing to challenge the administration’s failure to comply with these statutory requirements. The decision does not express a position, however, on whether the administration is complying with its legal obligations under those provisions.

Apparently, the court had some concern about unintended consequences. It adds that it is not suggesting that federal courts never can entertain cases involving an administration’s alleged failure to make more arrests or bring more prosecutions.

It has adjudicated selective-prosecution claims under the Equal Protection Clause in which the plaintiff is seeking to prevent his or her own prosecution. Standing might be found when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court. The standing calculus might change if the administration has wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. And standing might be found in a case where an administration policy involves both arrest or prosecution priorities and the provision of legal benefits or legal status.

Furthermore, other forums remain open for examining the administration’s immigration enforcement policies. For example, Congress possesses an array of tools to analyze and influence such policies: oversight, appropriations, the legislative process, and Senate confirmations, to name a few.

In other words, “we” won’t let federal courts adjudicate the merits of complaints about a president’s immigration enforcement measures, but you can seek relief from Congress — which has been deadlocked on immigration issues for almost 40 years.

In a dissenting opinion, Justice Samuel Alito excoriated the majority for inflating the power of the executive branch. In order to reach the decision that Texas and Louisiana do not have standing, Alito wrote, the court “brushes aside major precedent that directly controls the standing question, refuses to apply our established test for standing, disregards factual findings made by the District Court after a trial, and holds that the only limit on the power of a President to disobey a law … is Congress’s power to employ the weapons of inter-branch warfare.”

Alito argued that the majority disregarded applicable precedent, misapplied other precedent and glossed over the court’s standing test in order to reach a conclusion that the plaintiffs here do not have standing. But when the facts and legal decisions are properly reviewed, they clearly do have standing.

The issue in this case is Congress’s constitutional authority to control immigration, which the Supreme Court has repeatedly emphasized. Here, Congress has explicitly required the government to arrest and detain certain criminal migrants. Yet, in Alito’s words, Biden “has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. And the Court now says that no party injured by this policy is allowed to challenge it in court.”

The Supreme Court’s decision will have a lasting impact on immigration enforcement, in the short run and for years to come. It has allowed Biden to fully implement his enforcement guidelines and release criminal migrants who the law says must be detained and removed. Moreover, future presidents will be free to exempt undocumented immigrants from statutory enforcement measures too.

But the standing requirement has been protected. Justice has been served!

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at nolanhillop-eds.blogspot.com

What the administration failed to acknowledge is that these restrictions undermine President Biden’s promise to end inhumane Trump-era border policies. Instead he is making a shambles of the right to seek asylum.

Seeking asylum is a legal act under U.S. and international law, whether or not the asylum seeker enters at an official border crossing. Yet the new restrictions block asylum seekers from entering the U.S. and deny asylum eligibility to many who have credible fear of persecution but are unable to surmount the barriers the rule creates.

I recently traveled with a group of attorneys to the Rio Grande Valley, where attorneys from the South Texas Pro Bono Asylum Representation Project (ProBAR) led us to a border encampment in Matamoros, Mexico, and to the Port Isabel Detention Center (PIDC) near Brownsville. What we saw and heard was reminiscent of the suffering under Trump administration policies that prevented migrants fleeing persecution from entering and seeking asylum in the U.S.

With the rescission of Title 42, individuals should again be permitted, under current law, to seek asylum in the U.S. Those who enter the U.S. and express fear of persecution have the right to an interview with an asylum officer. If they demonstrate credible fear of persecution on account of their race, religion, political opinion, or other protected ground, they should be permitted to apply for asylum. Those granted asylum are eligible for a green card and may petition to bring family to the U.S.

The Biden administration, however, severely limited these rights when it implemented the post-Title 42 Circumvention of Lawful Pathways Final Rule. Asylum-seekers crossing the southern border without authorization must now apply for and be denied asylum in a country through which they traveled or make an appointment to present themselves at a port of entry using the Customs and Border Protection (CBP) app known as CBP One. But it is nearly impossible to satisfy these requirements, as most transit countries do not have functioning asylum systems, and the CBP One app is riddled with malfunctions and delays.

Humanitarian organizations in Matamoros confirmed that only noncitizens with CBP One app appointments or a documented, grave medical condition are permitted to cross and present themselves at the Brownsville Port of Entry. This leaves migrants with valid asylum claims languishing in Matamoros in squalid and dangerous conditions. In the encampment we visited, approximately 2,500 people sheltered in shabby tents without running water, cooking, or bathing facilities, awaiting entry to the U.S.

Those who cross between official ports of entry without meeting one of the new conditions are presumed ineligible for asylum. Instead, they must meet a higher standard of proving reasonable fear of return and are only eligible for limited protection in the U.S. Those exempted from this presumed ineligibility include unaccompanied minors, trafficking victims, and people facing medical emergencies or imminent threat of death.

Most of the detained migrants we interviewed at PIDC had tried unsuccessfully to use the CBP One app. They had spotty access to internet, could not upload photos, were booted from the app, or were repeatedly advised that appointments were unavailable.

Several received transit passes as they entered countries along their journeys but had no realistic opportunities to apply for asylum. Others were kidnapped while waiting to cross. Captors tortured them while family members listened by cellphone and held them hostage until their families paid a ransom. After their release, fearing further violence, they crossed the Rio Grande, legally sought asylum, and were taken into CBP custody.

CBP processing centers are not designed for long-term detention, yet several migrants we interviewed were held in overcrowded, unhealthy CBP facilities for up to 12 days. They were then transferred to detention centers where some waited weeks for credible fear decisions. Few, if any, had lawyers to help them maneuver the complicated new asylum restrictions.

The American Immigration Council recently issued a report offering humane alternatives for border processing. They recommend, for example, expanding CBP’s capacity at ports of entry and establishing regional processing centers where “federal agencies are co-located with nongovernmental organizations to carry out processing, coordinate release, and provide effective case management for newly arrived migrants.”

The Department of Homeland Security said it will “make adjustments” to the new procedures if needed. However, small adjustments will not repair the damage done to the asylum process.

The Biden administration should rescind its rule and keep its promise to create humane border policies. The American Immigration Council has provided a roadmap — the Biden administration just needs to follow it.

Stacy Brustin is a Professor of Law and Director of the Immigrant and Refugee Advocacy Clinic at the Catholic University of America.

Eleven years ago, the DACA program was born out of the tireless advocacy of immigrant youth who were weary of living in the shadows, constantly fearing deportation and determined to gain some level of protection after decades of congressional inaction around immigration.

Since its creation in 2012, DACA has become the zenith of President Obama’s complicated immigration legacy. It is a wildly successful administrative relief policy that has empowered hundreds of thousands of young people like me to continue contributing to our country and economy. For the more than 600,000 young people currently with temporary work authorizations and protections from deportations, DACA has been nothing short of life-changing. 

The average DACA recipient came to this country at the age of six and has lived here for more than two decades. DACA recipients went to American elementary and high schools, and many have gone to college. More than 85 percent of the first generation of DACA recipients are now participating in the labor force, with 99 percent of them having graduated high school. And in the time since 2012, our average income has increased by a factor of seven, according to data from the American Community Survey.

My personal journey as a DACA recipient exemplifies the opportunities and struggles of Dreamers in our country. I arrived in New York with my family at age 10, seeking lifesaving treatment for my sister's brain condition after doctors in Dubai and India warned that it was unavailable anywhere else in the world. Since being granted DACA, I have dedicated myself to education and community service, obtaining a Nursing degree and a law degree. Today, I serve as a registered nurse and a licensed attorney, working to improve the child welfare system, protect human rights, and advance the rights of marginalized communities. 

Yet, despite our contributions to society, DACA recipients are still denied the stability and privileges enjoyed by our peers who have permanent status. One such opportunity is the freedom to travel beyond U.S. borders.

For the first time in my adult life, I experienced the world outside the U.S. by traveling to Mexico through a procedure known as Advance Parole. This mechanism allows certain noncitizens, including DACA recipients, to temporarily travel abroad with authorization to reenter the U.S. 

However, the constraints and requirements attached to Advance Parole add to the burden we carry. Our lives have been consumed by the exhausting pursuit of opportunities that others take for granted. And now, we are once again being forced to live in constant fear of losing the protections we hold dear as the courts continue down a path toward nullifying the entire DACA program at any given moment. 

Making matters worse, first-time DACA applications have already been stopped by legal challenges. This year marks the first time the DACA program is unavailable to nearly all undocumented high school graduates. An estimated 120,000 undocumented high school graduates this year will be unable to enter the workforce without the protections afforded by a program they qualify for. And while the ability to renew DACA for current recipients is safe for now, that could also change in the future, putting hundreds of thousands of young people at further risk. 

Time is running out. We desperately need Congress to pass a permanent solution for undocumented youth in this country. Without congressional action, the end of DACA will pour gas on the ongoing political discourse around immigration. It will also lead to the loss of hundreds of thousands of jobs, the devastating separation of countless families, and place further strains on the U.S. labor force.

An overwhelming majority of Americans across party lines are firm in their support to put Dreamers like me on a pathway to citizenship as a basic first step toward fixing our broken immigration system. Congress must act. But until then, thoughts, praises and hollow celebrations are not enough. 

Life as a DACA recipient has been an endless cycle of opportunities, threats, hard work, uncertainty, hope and fear of having the rug pulled out from under me. Beyond reflecting on the success of the DACA program, let us channel the collective force that brought about DACA in the first place and use it as the foundation upon which we can build a permanent solution.

Hina Naveed is a nurse, an attorney and a DACA recipient based in New York City.

Texas governor Greg Abbott has gone and done it again, aggressively preempting federal authority to manage our international boundary with Mexico. This time, instead of lines of shipping containers, steel fences and miles of concertina wire, it’s floating chains of buoy-anchored, rotating jumbo-balls down the center of the Rio Grande River, designed to prevent swimmers and floaters from reaching Texas's shore.

Abbott’s justification for this patently political act is that it will save lives. That’s a bit rich, given his apparent lack of concern for desperate migrants lacerating themselves while weaving through razor wire or risking injury and death descending the 30-foot metal fences now being erected under Operation Lone Star.

But whether or not Abbott’s concern for migrants is at all sincere, his aggressive new migrant prevention measure brazenly flouts the international treaty governing the management of the Rio Grande River.

The Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary, signed in 1970, sets limits on how the two countries can manage the Rio Grande. Most particularly, the treaty prevents any one country from unilaterally taking measures that would displace the boundary or impair its integrity. Any such measures, including the construction of levees or other barriers along the river in its reach from El Paso to Brownsville, require the approval of both the U.S. and Mexican governments.

Two conditions are cardinal to the 1970 Boundary Treaty. First, in accordance with both domestic and international law, adherence to the treaty is a national obligation that binds the affected states. States have no independent authority in the matter of treaty adherence and enforcement. Second, any proposed barriers with the potential to impair the boundary can only proceed as a joint decision of the parties as a joint decision of the parties. These are binding rules, not principles or guidelines.

Governor Abbott’s new barrier violates both of these rules. The International Boundary and Water Commission’s U.S. Section, charged with enforcing and implementing the 1970 treaty, says it was not consulted. If the U.S. Section wasn’t consulted, you can bet the Mexican Section was left in the dark too.

Nor is this the first time Abbott’s ignored international law. He looked the other way when the now notorious We Built the Wall group (of Steve Bannon fame) built bollard-style fencing on the banks of the Rio Grande absent any prior consultation with the IBWC or Mexican approval. That project, parts of which are now in danger of collapsing in the river, was sued by the federal attorney for the Southern District of Texas for treaty violation, forcing Fisher Sand and Gravel, the contractor, to settle the case and assume responsibility for any damages that occur. 

Did that deter Abbott? No. He recently hired Fisher to build the 9-mile steel fence segment of his Operation Lone Star wall.

Abbott’s latest barrier concoction, which he proposes to install at various migrant hot-spots along the river, similarly violates the boundary treaty. Moored by buoys, the bobbing balls and the underwater skirt they support risk catching debris and obstructing the natural river. There’s no telling what will occur under flood conditions should powerful flows pack more debris in the buoy-skirts at river pivots, deflecting water into Mexico and threatening the integrity of the river’s course.

And then there’s the problem of preempting the IBWC’s authority to establish and maintain the boundary in the center of the river. It’s not at all clear just how Abbott’s team intends to place the bobbing barrier and whether it can reliably sit just shy of the river’s center in U.S. sovereign jurisdiction, or whether it impedes the IBWC’s ability to manage the boundary channel.

The most immediate violation, however, is simply the failure to consult with either the IBWC or U.S. federal officials in deploying these tethered balls in the river. That is not just insulting to Mexico, it’s downright unlawful.

Abbott’s willingness to play the Texas sovereignty card and exploit the migrant crisis for political gain is hardly a secret. His willingness to ignore international obligations as he grandstands on the backs of desperate people is not just an international embarrassment complicating our relations with Mexico — it’s a disgrace. We can only hope the IBWC’s U.S. section and federal attorneys in the Southern District of Texas are watching closely.

Stephen Mumme is author of "Border Water: : The Politics of U.S.-Mexico Transboundary Water Management, 1945–2015" and a professor of political science at Colorado State University.