On April 12, the Los Angeles Times reported that the Biden administration is pausing its “so-called asylum processing rule”, implemented last May and pursuant to which asylum officers — not just immigration judges as had been the case for the prior 25 years — are empowered to adjudicate asylum applications filed by apprehended border migrants. The rule is being paused as the administration gears up for a post-Title 42 onslaught of illegal entrants over the Southwest border, but the president should simply shelve the radical idea entirely, and return to the rules Congress wrote. They worked in the past, and will in the future, too.
Expedited Removal and Credible Fear. That rule is a transmogrification of “expedited removal”, a plan Congress mapped out in 1996 to curb asylum abuses and facilitate the removal of illegal entrants and other aliens who lacked proper documents to enter the United States. Those 1996 amendments allowed immigration officers at the ports and Border Patrol agents between the ports to quickly remove such aliens without sending them to immigration court.
Under those amendments, aliens subject to expedited removal who request asylum or claim they will be harmed upon return are to be sent to asylum officers (AOs) for interviews to determine whether they have a “credible fear” of persecution.
Credible fear is defined in statute as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.
It’s not a high bar because AO credible fear interviews are simply a screening procedure to determine whether aliens may be eligible for asylum. Consequently, even aliens with weak or bogus asylum claims can receive “positive credible fear determinations”.
DOJ statistics bear that out. They show that between FY 2008 and FY 2019, 81 percent of aliens who were subject to expedited removal and claimed a fear of return received “positive credible fear determinations” from AOs (an additional 2 percent were found to have a credible fear on review by immigration judges, or “IJs”).
Despite that high credible-fear approval rate, however, fewer than 17 percent of border migrants who were found to have a credible fear were granted asylum by IJs. By contrast, IJs ordered 32.5 percent of aliens who had been found to have a credible fear removed in absentia when they subsequently failed to appear in court.
As written, however, the expedited removal statute deters aliens from entering the United States illegally and making weak or bogus asylum claims, because it also mandates that those aliens be detained — from the point they are encountered by DHS to when they are either granted asylum or removed.
And, as DHS statistics show, deterrence is exactly what happened when DHS complied with that mandate. For example, in FY 2006, FY 2007, and FY 2009, just 5 percent of migrants subject to expedited removal claimed a fear of return, as did just 4 percent in FY 2008.
The December 2009 Morton Directive. That well-calibrated expedited removal system started coming off the rails, however, in December 2009, when then-ICE Director John Morton directed his officers to release aliens who had passed their credible fear interviews on “parole”.
Again, the credible fear standard is not a high bar, and it can be easily exploited. Therefore, even absent the congressional detention mandate, a positive credible fear finding should not have served as a basis for concluding that the recipient was not a “flight risk”, which is the general standard for releasing an alien who doesn’t pose a public-safety risk. The statutory mandate simply underscored that fact.
In any event, after the “Morton Directive” was implemented, would-be illegal migrants — and more importantly, their smugglers — realized that making a fear claim when apprehended all-but guaranteed release into the United States, and the number of such claims soared.
In FY 2010, the year the directive was issued, 7 percent of aliens subject to expedited removal requested asylum or claimed a fear of harm, a figure that more than doubled to 15 percent by FY 2013, before jumping to 25 percent in FY 2015 and then reaching 39 percent in FY 2016 — an almost eight-fold increase in just seven years.
Trump’s Response. In FY 2017, the year Donald Trump became president, 44 percent of aliens subject to expedited removal — more than 78,000 border and port migrants — claimed credible fear.
Trump tried to detain them all, and in February 2017, then-DHS secretary John Kelly alluded to the deleterious effects of the Morton directive:
The practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration.
Nevertheless, Kelly kept that directive in place while directing ICE and CBP “to expand their detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable”.
It was too late, and by FY 2018, nearly 100,000 migrants subject to expedited removal were claiming a fear of harm or requested asylum.
Instead of detaining those border migrants in the United States, however, Trump did what he considered the next best thing: returning “other than Mexican” nationals who had entered illegally at the Southwest border back across that border to await their removal hearings, a program formally termed the “Migrant Protection Protocols” (MPP), but better known as “Remain in Mexico”.
In a subsequent October 2019 assessment of that program, DHS found that MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families.
Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.
Biden’s Retort. On the 2020 campaign trail, Biden derided MPP and Trump’s other border policies, and soon after taking office, ended almost all of them (while battling a now two-year-long effort by state plaintiffs in Texas v. Biden to force DHS to reimplement Remain in Mexico).
Biden has abandoned any pretense of complying with the congressional detention mandate, and has asked Congress for two straight years to cut detention funding while rejecting any other deterrent, all to provide what his DHS secretary calls “safe, orderly, and legal pathways for individuals to be able to access our legal system” — that is, to seek asylum, regardless of the strength of their claims or even whether the aliens seek asylum at all.
As a federal judge found on March 8, however, Biden’s border release policies have created “a flashing ‘Come In, We’re Open’ sign” on the Southwest border for would-be migrants, and more importantly, their smugglers.
Consequently, Border Patrol agents at the Southwest border set new yearly apprehension records in both FY 2021 (nearly 1.66 million) and FY 2022 (more than 2.2 million).
Asylum Merits Interviews. Not surprisingly, the release of hundreds of thousands of migrants annually at the Southwest border to apply for asylum has placed a massive strain on the immigration courts.
Almost 254,000 new asylum claims were filed in the immigration courts in FY 2022 (a yearly record) and IJs received an additional 93,000-plus applications in just the first three months of FY 2023. The backlog of asylum cases pending IJ decision has nearly doubled from the end of FY 2017 (just fewer than 381,000), to nearly 750,000 as of January 16.
Which brings me to the May asylum processing rule. Again, between 1996 and the implementation of that rule, IJs — not AOs — had exclusively adjudicated asylum claims made by illegal migrants subject to expedited removal who had received positive credible fear determinations.
That Biden rule created the concept of non-adversarial “Asylum Merits Interviews” (AMIs), at which AOs — not IJs — would make the decision of whether border migrants found to have a credible fear would be granted asylum.
They’re “non-adversarial” interviews because there’s no party present during that AMI to cross-examine the alien or offer evidence contradicting the alien’s claim (a role played by ICE attorneys in immigration court). In order words, the alien applicant can have a lawyer present when AOs are adjudicating those asylum claims, but the American people will not.
It was, simply, a radical and untested change, but that is just one of the problems the Center identified in the 83-page comment it filed when that rule was being proposed.
To summarize the most salient point in that rather lengthy document, that rule makes it much more likely that border migrants with weak or bogus claims will be granted asylum (and placed on a path to citizenship), which will encourage even more migrants to enter illegally and make weak or bogus claims.
And the subsequent evidence has borne out at least the first part of that assertion. As I recently reported, AOs in the AMI process have granted asylum to migrants who made credible fear claims at more than twice the rate (33.5 percent) that IJs did in the first quarter of FY 2023 (13.81 percent).
Perhaps AOs were simply considering more meritorious claims (the sample size is small, with just 973 AMI cases going to decision since the rule was implemented, compared to more than 14,000 IJ decisions in the first three months of FY 2023), but that is a significant disparity, and one that merits investigation before the AMI process is continued, let alone expanded any further.
Fortunately, as the Times reports, the Biden administration is pausing the AMI process while it gears up to prepare for an expected surge of migrants at the Southwest border once Title 42 ends (which is currently scheduled to occur on May 11, although the Supreme Court currently has a stay in place).
Part of the administration’s post-Title 42 plan is to have AOs conduct credible fear interviews for migrants while they are in DHS custody at the border, which as noted was their original role in the process. That means that — for a brief period at least — a significant number of purely economic migrants at the Southwest border should be deported under expedited removal.
Biden Should Return to Congress’ Rules. Congress created the expedited removal process to curb asylum abuses and deter illegal entries, which it originally did. Due to executive branch meddling, however, “expedited removal” now functions more to move illegal migrants into the United States than keep them out, and to compound asylum abuses instead of curbing them.
The Biden administration should return to the expedited removal rules Congress wrote by detaining all illegal entrants, having AOs adjudicate any credible fear claims they may make, and leaving it to IJs to decide who gets asylum. That worked in the past, and it will work in the future, as well.