AG Nominee Garland Evasive on Whether Illegal Border Crossing Should Remain a Crime

Attorney General nominee Merrick Garland is sworn-in during his confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building in Washington, on Feb.22, 2021. (Drew Angerer/Getty Images)

President Joe Biden’s nominee for U.S. attorney general, Merrick Garland, gave an evasive answer during his Senate confirmation hearing Monday to the question of whether illegal border crossings should continue to be treated as a crime.

Sen. Josh Hawley (R-Mo.) asked Garland during a Senate Judiciary Committee hearing whether unlawful border crossings into the United States “should remain a crime.”

Garland replied by saying he had not “thought about that question.”

“I think the President has made clear that we are a country with borders and with a concern about national security,” Garland continued, adding that he is not aware of any proposal “to decriminalize but still make it unlawful to enter.”

“I just don’t know the answer to that question, I haven’t thought about it,” Garland said.

Hawley pressed the issue by asking whether Garland, if confirmed, would continue to prosecute illegal border crossings.

Sen. Joshua Hawley (R-Mo.) questions Supreme Court nominee Judge Amy Coney Barrett before the Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill in Washington, on Oct. 14, 2020. (Greg Nash-Pool/Getty Images)

Garland replied by saying he presumes “the answer would be yes,” but that he lacks detailed knowledge about current arrangements around the treatment of illegal border crossings.

“Well, this is again a question of allocation of resources,” Garland said. “The department will prevent unlawful crossing.” He added that he does not “know what the current program even is with respect to this.”

“I assume that the answer would be yes,” he continued, adding that he does not “know what the issues ... surrounding it are.”

Judge Merrick Garland, President Joe Biden's nominee to be U.S. Attorney General, speaks in Wilmington, Delaware, on Jan. 7, 2021. (Kevin Lamarque/File Photo/Reuters)

Hawley asked Garland about asylum eligibility guidelines implemented under the Trump administration, specifically about whether the prospective attorney general would be in favor of keeping them in force, or whether he anticipates changing them.

“Given my current professional occupation, I’ve had no experience whatsoever with the guidelines, so I can’t give you a direct answer to that question,” Garland said.

“Asylum is part of American law and the Justice Department and the State Department have an obligation to apply that law. I don’t know what the guidelines are that you’re talking about and I don’t know even about the rescissions of the guidelines that you’re talking about.”

Hawley did not clarify what guidelines he had in mind, but he may have been referring broadly to the issue of the expansion of administrative amnesty policies, which former President Donald Trump sought to curb by enacting at least five rules since the beginning of 2019, with the intention of addressing asylum claims that don’t have merit and to confront a sharp increase in border arrests.

The Migrant Protection Protocols (MPP), dubbed the “Remain in Mexico” program, was one such Trump-era policy under which asylum-seekers were made to wait in Mexico for their U.S. court hearings.

The Biden administration on Feb. 12 announced plans for tens of thousands of people who are seeking asylum and have been waiting in Mexico under the MPP program to be allowed into the United States while their cases make their way through immigration courts. The first wave of an estimated 25,000 asylum-seekers with active cases in the “Remain in Mexico” program would be allowed into the United States on Feb. 19, authorities said.

“This latest action is another step in our commitment to reform immigration policies that do not align with our nation’s values,” Secretary of Homeland Security Alejandro Mayorkas said in a statement at the time, noting that the move is part of the Biden administration’s “phased strategy to reform the nation’s immigration system.”

At Garland’s hearing, Sen. Lindsey Graham (R-S.C.) spoke of drug cartels exploiting asylum laws to weaken border security by getting people to “rush the border” and make bogus asylum claims as a way of diverting resources away from border security. Graham asked Garland if he would “look into that practice of using asylum claims by drug cartels to weaken border security.”

Garland said that he was aware of the issue, but vowed to “look into this problem.”

“I think the drug cartels are a major menace to our society. The poison that they put into our streets is damaging communities of every kind,” he said.

Garland, a federal appellate judge and former prosecutor, is widely expected to win Senate confirmation. He has said he plans to prioritize civil rights and combating domestic terrorism if confirmed.