Thread by @gabrielmalor

Alright, one more mega-thread on the latest bill to address the border crisis and family separation, Sen. Cruz's Protect Kids and Parents Act.

Bill text here: cruz.senate.gov/files/document…

First, some housekeeping. I previously discussed several problems with this legislation in a thread here:

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I also came to believe that one of the problems with the credible fear/asylum review deadlines in Cruz's bill is based on a typo:

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What I want to talk about this morning is just how logistically possible Cruz's hyperaccelerated process is—but not for applicants, who I have no doubt will largely be unable to muster the evidence to prevail on a claim within 7 days of their initial detention.

Rather, I want to examine some issues DOJ will even have meeting Cruz's deadlines, specifically the BIA which is supposed to review these claims after the IJs rule against the applicants.

Here I sketched out the timeline of events provided for by Cruz's bill for an unlawful entrant who seeks asylum w/in 48 hours of detention. Lawgeeks, the sections are listed on the right.

(Pardon the look, I have no spreadsheet-fu.)

As you can see, Cruz's bill anticipates a timeline of *at most* 17 days from detention to final resolution of the applicants claim. This assumes applicant is denied at every step, and that each step takes a full 24 hour period.

(Also, pedants, we're starting at noon on Day 1.)

For now, let's drill down on just one bottleneck: Day 13. At this point, the applicant who has thus far been denied may request review of the IJ's decision by the BIA. The AG must then present that request to BIA w/in 24 hours.

But think about what that entails. The IJ and the record of proceedings is at some rinky-dink DHS detention facility in Nowheresville, Border-Adjacent.

The BIA is in Falls Church, Virginia.

Two problems (at least): First, in that 24 hours, some DOJ guy at the rinky-dink DHS facility is going to have to get the record of proceedings to Falls Church. Obviously, the mail isn't going to cut it. They're going to have to digitize everything and send it electronically.

So part of that 24 hours is lost scanning documents. That would include the application itself, any supporting material like birth & marriage certificates, country reports, etc. It would also include the asylum officer's notes and that interview transcript.

Second problem: at this point, there is no transcript of the IJ hearing. There will be an audio recording. If it's in a newer facility, this will be digital, and can be sent electronically. If it's in a crap DHS facility, it could be on, I shit you not, a tape recorder.

Now, the BIA doesn't typically listen to the recordings when it reviews IJ decisions. Transcripts are made by a contractor, and the BIA uses the transcripts. Obviously, there is no time w/in the 24 hours Cruz's bill allots to have transcripts made, so BIA is gonna hafta make do.

Incidentally, there is also almost no time in that 24 hours for either side, either the applicant or DHS to brief the case.

Cruz's entire timeline supposes that none of these cases will need briefing nor that either side will want briefing.

People may not realize that while the asylum officer interview is non-adversarial, hearings before IJs and the BIA are supposed to be adversarial—just like real court. DHS v. the alien.

There's no time in the Cruz bill's timeline for any of that.

So there is a logistical problem here even getting these cases from the detention facilities to BIA in a format conducive to review. 24 hours isn't going to cut it. It's simply unworkable.

And that's just the problem going from Day 13 to Day 14.

Backing up now to a broader view. There's a reason that court deadlines are typically calculated in days, not hours. Particularly not with mandatory duties within every 24 hours.

The Cruz bill literally requires immigration judges, the Board of Immigration Appeals, and the AG to be on call 24 hours a day, including weekends and federal holidays, to handle these cases on the timeline. This is absurd, and a recipe for disaster.

(I still don't know why the AG review step is even in Cruz's bill. Regular removal cases don't even have that option, why should these hyperaccelerated cases get a shot at the AG?)

Wrapping up now bc I have to do radio (hi, Connecticut!), a few other things I noticed Cruz's bill is missing: it really needs an operative date AND a rule for retroactivity.

The asylum seekers currently in the United States have certain statutory and regulatory rights that the Cruz bill would purport to override.

Legislation must be explicit about who it applies to AND when, or a whole lot of frustrating litigation will follow.

And with that, thank you for bearing with this awful-long tweet storms.

Statutory interpretation is my jam.