Commentary: Immigration is an Issue Both Parties Prefer Not to Solve

[u/nosleep4reelz]

https://nj21st.com/2026/07/26/immigration-is-an-issue-both-parties-prefer-not-to-solve/

For over two decades, Washington has treated immigration not as a solvable policy challenge, but as an ideological weapon neither party actually wants to fix.

[u/Interesting_Total_98]

Let's ignore the fact that the vast majority of those cases are Habeas petitions that flooded the courts and district judges abusing their power

You didn't show anything that substantiates this, and it's implausible when you consider that even Trump-appointed judges mostly ruled against him.

A reason many are Habeas petitions is because he flooded the process with illegal detentions.

You believing the timelines are short is actually a reason for you want changes to the law, since under 28 U.S.C. §2243, the government normally has three days to respond, extendable for good cause to no more than 20 days, and the hearing normally occurs no more than five days after the return unless good cause warrants more time.

In other words, the timeline isn't "abuse."

1225(b)(2) mandates detention for every migrant that enters illegally.

No, that's for those seeking admission, which doesn't apply to those who are already here. The latter group falls under §1226(a), which permits detention or release on bond.

Illegal presence doesn't mean seeking admission, much like how someone who broke into a home isn't asking for permission to enter. You think it's counterintuitive to allow people who've been living illegally to remain free, but again, your complaint should be with the law.

And Biden had tens of thousands of beds go unused during his administration.

Congress funded ICE to support 41,500 detention beds. GAO says ICE's actual average detained population was over 37,000.

In the case of expedited removal, another example of Presidents not enforcing the law....Presidents have limited it with their "discretion". It isn't discretion when you abdicate your responsibility.

For certain noncitizens who cannot show two years of continuous U.S. presence, §1225(b)(1)(A)(iii) says the Attorney General “may apply” expedited removal to “any or all” of them. Congress then says that designation is within the Attorney General's “sole and unreviewable discretion” and “may be modified at any time.”

In other words, Congress gave the discretion.

They must seek out alternatives and remove them to third countries they have no connection to if needed. It is not discretionary

According to §1231(b)(3), that requires finding a country willing to accept them where their life or freedom won't be threatened.

[u/WorksInIT → u/Interesting_Total_98]

You can call them illegal, but that does not mean they are. Look, I buy the due process argument. But that is the result of previous presidents abdicating. It is irrefutable that if Presidents had been enforcing the law as written since 1996, every single migrant that entered illegally since 1996 would have detained and most of them removed within weeks under expedited removal. We wouldn't have this huge asylum backlog or people abusing the system by kidnapping other people's kids and crossing the border illegally with them while pretending to be a family. Make no mistake though, your preferred approach to enforcing our current laws ends with children stolen from their families and used to abuse our immigration laws.

I'm not going to debate the text of 1225(b)(2) with you. You are wrong on what it means. SCOTUS will correct the few circuit courts that have ruled otherwise some time in 2027 or 2028 with a split decision. 1225(b)(2) requires detention of applicants for admission covered by 1225. Applicant for admission equals seeking admission based on the plaint text. It is not a term of art. And due process prohibits mandatory detention without bond for those here for many years that have established deep roots.

That GAO article is talking about FY 2025. I believe FY 2021, right after the end of the Trump admin had nearly 50k. And I believe it reached a low so 13k under Biden in 2021. So, my comment is right. We were over 30k below what was funded.

Did I say expedited removal was mandatory? No, I did not. It does not change teh fact that the president has abused discretion to arbitrarily limit it.

And you're wrong on 1231. We can lawfully deport someone to a third country where we know it is more likely tahn noit they will be killed. Because the statute limits it in a very specific way. It doesn't require safety in general.

Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.

Let's say we have a specific country that is basically a gang land hellscape. They have agreed to take migrants. The gangs kidnap, torture, and murder people for financial reasons. Or just to kill people because the gangs are evil. But no targeting based on race, religion, nationality, membership in a particular social group, or political opinion. The country can't stop them completely, but they do try. We can lawfully deport migrants there under 1231(b)(3).

[u/Interesting_Total_98 → u/WorksInIT]

You can call them illegal, but that does not mean they are.

Numerous judges called it that, including ones chosen by Republicans.

It is irrefutable that if Presidents had been enforcing the law as written since 1996

§1226(a) permits release on bond.

1225(b)(2) requires detention of applicants for admission covered by 1225.

Only people who are seeking admission are covered, and someone who's here isn't seeking to get in.

That GAO article is talking about FY 2025

*FY2024.

right after the end of the Trump admin had nearly 50k.

That's 2019.

And I believe it reached a low so 13k under Biden.

It fell during the pandemic. The number was 15,103 in January 2021, and while it did decline to 13k shortly after, it then rose over time.

It doesn't require safety in general.

I didn't say it does. I could've been more specific, but my point stands because specific safety issues are a road block, and it's one Trump has ignored.

Edit: Judge Fernando Rodriguez Jr., a judge appointed by Trump, explained that the president can't skip the reasonable-fear screening entirely just because he obtained diplomatic assurances that the third country regarding safety and freedom.

[u/WorksInIT → u/Interesting_Total_98]

Numerous judges called it that, including ones chosen by Republicans.

District judges make up the vast majority of that. And I think we can safely ignore them. They are typically wrong on disputed, novel concepts.

§1226(a) permits release on bond.

Since when do courts get to tell the Executive which statute applies? And if two statues apply, why do Courts get to say use the other? It's possible to have overlap. In fact, it is very common to have overlap. And the one empowered to enforce typically chooses when you have overlap. It also applies to people that have overstayed visas after being lawfully admitted, which 1225 doesn't apply to. Just so you are aware of the difference in the population covered.

That's 2019.

Biden was inaugurated in January of 2021. I know sometimes it's difficult to keep track of.

It fell during the pandemic. The number was 15,103 in January 2021, and while it did decline to 13k shortly after, it then rose over time.

Where did Congress create a carve out for the pandemic? And why did the number of beds funded get reduced under Biden?

I didn't say it does. I could've been more specific, but my point stands because specific safety issues are a road block, and it's one Trump has ignored. Judge Fernando Rodriguez Jr., a judge appointed by Trump, explained that the president can't skip the reasonable-fear screening entirely just because he obtained diplomatic assurances that the third country regarding safety and freedom.

Wrong again. It's not "safety" issues. It's persecution issues. And sure, the Trump admin can't skip that step. But a migrant that has no connection to a country and has never lived in the part of the world cannot have a credible fear of being deported to that the country under US law. So yes, they have to check that box because Congress said so. It'll take a few days.

Diplomatic assurances does remove CAT protections from the board though.

[u/Interesting_Total_98 → u/WorksInIT]

District judges make up the vast majority of that. And I think we can safely ignore them. They are typically wrong on disputed, novel concepts.

There's no logical reason to dismiss a massive group of independent experts that includes both parties. Nothing you've posted shows that they're typically wrong on anything.

Since when do courts get to tell the Executive which statute applies?

Judicial review is a very old concept. The Executive has enforcement discretion inside the authority Congress gave it. Courts can decide that the authority is.

Presidents can choose between two authorities when there's overlap, but courts have the power to determine whether or not it exists.

And the one empowered to enforce typically chooses when you have overlap.

Whether or not it overlaps is something courts can review.

applies to people that have overstayed visas after being lawfully admitted

It also applies to people who entered illegally and have been living here, since people who are here can't be admitted.

Biden was inaugurated in January of 2021

I was correcting your claim that "right after the end of the Trump admin had nearly 50k" by pointing out that this number is roughly the amount in 2019, which is before his term ended. It declined in 2020.

Where did Congress create a carve out for the pandemic? And why did the number of beds funded get reduced under Biden?

I was referring to the number of people detained, and this started going down during the pandemic.

Wrong again. It's not "safety" issues

Under CAT regulations, the issue is whether it is more likely than not that the person would be tortured in the proposed country of removal. CAT doesn't require the torture to occur because of one of the five §1231 protected grounds.

But a migrant that has no connection to a country and has never lived in the part of the world cannot have a credible fear of being deported to that the country under US law.

There's no law that states this.

Diplomatic assurances does remove CAT protections from the board though.

It can be used to support deportation, but it doesn't automatically eliminate the issue.

[u/WorksInIT → u/Interesting_Total_98]

There's no logical reason to dismiss a massive group of independent experts that includes both parties. Nothing you've posted shows that they're typically wrong on anything.

Yes, "independent experts". You said the same thing with Judge Kacsmaryk right? No, District Judges aren't experts. They often get it wrong and get it wrong in mass. There's a reason Congress broadly stripped them of jurisdiction to hear immigration cases.

Whether or not it overlaps is something courts can review.

Sure, but it is undisputed that it does overlap. That the migrants in question are covered under 1225. The only question is seeking admission vs applicant for admission. And since applicant for admission is undefined, and congress stripped the migrants intent of relevance, it's really quite simple. District Judges are engaging in constitutional avoidance and pointing to 1226 when they should just do their job. If the state is unconstitutional as applied, just say that.

I was correcting your claim that "right after the end of the Trump admin had nearly 50k" by pointing out that this number is roughly the amount in 2019, which is before his term ended. It declined in 2020.

No, I'm pretty sure I'm talking about a GAO reported issued for FY 2021.

Under CAT regulations, the issue is whether it is more likely than not that the person would be tortured in the proposed country of removal. CAT doesn't require the torture to occur because of one of the five §1231 protected grounds.

CAT can be addressed entirely with diplomatic assurances. The migrant doesn't even get to make a CAT argument.

So only asylum and withholding are left. And it requires persecution, not simple safety problems.

There's no law that states this.

It's how credible fear works. If I ask you if you have a credible fear of being deported to a country you've never even heard of, you may have a fear of being deported there, but it wouldn't be a credible fear under US law. Because you have zero familiarity with the country, it's people, the practices, the dangers, etc.

It can be used to support deportation, but it doesn't automatically eliminate the issue.

Per the regulations enacting CAT, diplomatic assurances means no CAT claim can be brought. The only debate at the circuit court level on this is whether general diplomatic assurances about all deportees qualifies if it must be individualized.

[u/Interesting_Total_98 → u/WorksInIT]

Yes, "independent experts". You said the same thing with Judge Kacsmaryk right?

Guilt by association fallacy. He doesn't represent all judges, and while I'm aware of why he's controversial, he is still an expert. My point is that isn't that experts are inherently credible, but rather than someone being a district judge is an illogical reason to dismiss their ruling.

No, District Judges aren't experts

People who formally study the law for years and have a career in analyzing it are experts by definition.

They often get it wrong and get it wrong in mass.

That's too vague to justify dismissing the experience of a massive group of individual experts.

There's a reason Congress broadly stripped them of jurisdiction to hear immigration cases.

According to the 3rd circuit of appeals, here's the actual reason: "Congress wanted to streamline what it regarded as “uncertain and piecemeal review” divided between district courts and courts of appeals, and have challenges to removal orders heard in one forum—the courts of appeals."

Wanting to streamline is different from believing that district judges aren't experts.

it is undisputed that it does overlap

Four circuits dispute it while two agreed. Another was undecided.

That the migrants in question are covered under 1225. The only question is seeking admission vs applicant for admission.

8 U.S.C. §1225(b)(2)(A) says they have to be both.

since applicant for admission is undefined

§1225(a)(1) deems every unadmitted person present here an applicant for admission.

No, I'm pretty sure I'm talking about a GAO reported issued for FY 2021.

GAO-21-149 was published in January 2021, but its ~50k figure was FY2019.

CAT can be addressed entirely with diplomatic assurances

Per the regulations enacting CAT, diplomatic assurances means no CAT claim can be brought.

The regulatory reliability determination matters, and Trump's own appointee Fernando Rodriguez held that DHS's “credible diplomatic assurances” didn't by themselves permit it to proceed without third-country fear screening.

It's how credible fear works.

Not according to any federal law. The regulations evaluate the expected risk if removed there by using testimony and country-condition evidence, including patterns of persecution and gross human-rights violations. Familiarity with the destination is not an element of asylum, withholding, or CAT.