(See the first in the series here.)
In presidential candidate Joe Biden’s imagining, America’s asylum system was not being abused; rather, it was saving the world and fulfilling America’s destiny ... before President Trump ruined it all. Biden proclaimed in August 2020 that:
We're going to restore our moral standing in the world and our historic role as a safe haven for refugees and asylum seekers. ... My lord, we have never — we have never [until Trump] made asylum seekers stay — seek asylum outside the United States of America.
In the “Biden Plan for Securing Our Values as a Nation of Immigrants”, the Biden-Harris campaign wrote that:
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The Statue of Liberty has long been a beacon to people “yearning to breathe free” around the world — including asylum-seekers and refugees. But the Trump Administration has worked against this tradition to drastically restrict access to asylum in the U.S. ... Biden will end these policies, starting with Trump’s Migrant Protection Protocols [MPP], and restore our asylum laws so that they do what they should be designed to do — protect people fleeing persecution and who cannot return home safely.
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[T]hrough his [MPP] policies, Trump has effectively closed our country to asylum seekers, forcing them instead to choose between waiting in dangerous situations ... or taking a risk to try crossing between the ports of entry.
Besides disastrously terminating the MPP, what else would Biden do as president?
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[P]roven alternatives to detention and non-profit case management programs, which support migrants as they navigate their legal obligations, are the best way to ensure that they attend all required immigration appointments [what, to see the immigration doctor?]. These programs also enable migrants to live in dignity and safety while awaiting their court hearings — facilitating things like doctor visits [I guess so!], social services, and school enrollment for children.
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Migrants who qualify for an asylum claim will be admitted to the country through an orderly process and connected with resources that will help them care for themselves.
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Biden will dramatically increase U.S. government resources to support migrants awaiting assessment of their asylum claims and to the organizations providing for their needs.
As my colleague Andrew Arthur wrote after the Biden-Harris campaign issued this plan:
Biden ... wants to ... end[] the successful Migrant Protection Protocols.
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Not content with that, Biden in addition apparently wants to ... admit unlimited numbers of asylum claimants at the ports of entry, and limit detention in lieu of expanding unproven alternatives to detention.
Not satisfied with that, Biden wants to "dramatically increase U.S. government resources to support migrants awaiting assessment of their asylum claims and to the organizations providing for their needs", in essence providing federal dollars to support those who have entered illegally.
As Arthur prophetically warned:
These policies would ... serve as a magnet to hundreds of thousands if not millions of migrants seeking illegal entry to the United States, safe in the knowledge that if they were simply able to make it to the Southwest border, they could live and work in the United States indefinitely, regardless of the strength of their asylum claims, or even if they had any such claims at all. They would serve as a "Smuggler's Relief Act", and line the pockets of cartels that charge a "tax" for the transit of every migrant across "their" territory.
In the October 22, 2020, presidential debate, President Trump lamented the release from detention of illegal aliens who had claimed a fear of return after being apprehended:
We would say, ‘Come back in two years, three years — we’re going to give you a court case. ... When you say they come back, they don’t come back, Joe. They never come back. Only the really — I hate to say this — but those with the lowest IQ, they might come back. But there are very very few.
Biden’s response? “What he’s telling you is simply not true.”
Thus, I was startled to see that President Biden’s hand-picked DHS Secretary (Alejandro Mayorkas) and Attorney General (Merrick Garland) have belatedly come to the realization that the United States is being played by “asylum seekers” (or perhaps more accurately, “asylum sneakers”):
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[M]any individuals who avail themselves of the credible fear [of persecution] process do not have meritorious claims [for asylum]. [Emphasis added throughout.]
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[M]ost people processed for expedited removal [ER] ... will likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum.
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[T]he current asylum system — in which most migrants who are initially deemed eligible to pursue their claims ultimately are not granted asylum in the subsequent ... removal proceedings — has contributed to a growing backlog of cases awaiting review by asylum officers and immigration judges [IJ].
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[T]hose who have a valid claim to asylum in the United States often have to wait years for a final protection decision. Conversely, noncitizens ultimately found ineligible for asylum or another form of protection are likely to spend many years in the United States prior to being ordered removed.
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The fact that large numbers of migrants pass the credible fear screening, only to be denied relief or protection on the merits after a lengthy adjudicatory process, has high costs to the system in terms of resources and time.
Mayorkas and Garland have realized that this state of affairs creates an incentive for aliens to come illegally to the U.S., and consequently to be victimized by the smugglers they hire:
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[T]he fact that migrants can wait in the United States for years before being issued a final order denying relief, and that many such individuals are never actually removed, likely incentivizes migrants to make the journey north. [Emphasis added throughout].
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This framework, pursuant to which migrants know that they will likely be in the United States for years before any order of removal, also risks providing an increased incentive for individuals to come to the United States.
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[T]he vast majority of the migrants expected to surge to the border and make a fear claim following the lifting of the Title 42 public health Order would be screened in and permitted to wait in the United States for years before their asylum or other protection claim could be adjudicated. [T]his circumstance would ... likely be self-reinforcing: the expectation of a lengthy stay in the United States, regardless of the merit of an individual’s case, risks driving even more migration.
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Such a high rate of migration risks ... creat[ing] a situation in which large numbers of migrants — only a small proportion of whom are likely to be granted asylum — are subject to extreme exploitation by the networks that support their movements north.
Mayorkas and Garland respond with a proposed regulation purporting to reduce the incentive for aliens with non-meritorious or bogus asylum claims to come to the U.S.:
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DHS data shows that the ability to quickly remove individuals who do not have a legal basis to remain in the United States can reduce migratory flows — whereas, conversely, the inability or failure to do so risks yielding increased flows.
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[A]n increase in removal flights and faster movement of migrants into [ER], out of detention, and onto removal flights, as appropriate, is needed in order to disincentivize a further increase in encounters.
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[B]y reducing the number of [illegal aliens] permitted to remain in the United States despite having non-meritorious asylum and protection claims, the proposed rule would reduce incentives for similarly situated [persons] to seek to cross the border, thus reducing the anticipated surge.
Now, the proposed regulation is actually a sham. My colleague Elizabeth Jacobs concludes that it is “so fraught with exceptions and loopholes that the general public should expect few prospective migrants to actually be deterred”, as do I.
In any event, the conclusions that Mayorkas and Garland reach in demonstrating the need for their regulation should come as no surprise to anyone, especially anyone at DHS or DOJ. For the two departments had reached exactly the same conclusions four years earlier, explaining in 2019 that:
[S]ignificant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases ...) established that they should be granted asylum.
Further, as DHS explained in 2018:
[Many] aliens claiming credible fear ... know it will give them an opportunity to stay in our country, even if they do not actually have a valid claim to asylum. As a result, the United States has an overwhelming asylum backlog. ... Most of these claims are not meritorious — in fact nine out of ten asylum claims are not granted by a federal immigration judge. However, by the time a judge has ordered them removed from the United States, many have vanished. [Emphasis in original.]
And as DHS and DOJ stated in the context of a proposed regulation:
By reducing the incentive for aliens without an urgent or genuine need for asylum to cross the border — in the hope of a lengthy asylum process that will enable them to remain in the United States for years, typically free from detention and with work authorization ... the rule aims to reduce human smuggling and its tragic effects.
The incoming Biden administration refused to listen to the pleas of both outgoing Trump administration and career DHS officials. As Chad Wolf, acting secretary of Homeland Security at the end of the Trump administration, recalled:
[Wolf] said he and his career staff held multiple briefings with the incoming Biden transition team to outline the challenges. ... [and] his staff at U.S. Customs and Border Protection warned the Biden team that it would risk another [border] crisis if it removed ... programs [such as the MPP]. "CBP would tell them and, in a sense, warn them, 'If you remove this ... this is the consequence for that. We will see a significant uptick,'" he said.
Federal district court judge Matthew Kacsmaryk corroborated Chad Wolf’s recollections:
During the latter half of 2020, the Biden transition team met with career staff from DHS [who “]fully briefed the[m] on the importance of MPP and the consequences that would follow a suspension ... [including] a resurgence of illegal aliens attempting to illegally enter our [southwest border] ... [and] smuggling organizations ... exploit[ing] the rescission and convinc[ing] migrants the U.S. borders are open. They were warned the increased volume was predictable and would overwhelm Border Patrol’s capacity and facilities.”
Wolf should probably have added, "Après moi, le déluge".
As soon as Biden became president, he embarked on a crusade to dismantle the bulwarks against illegal immigration erected by the Trump administration. On February 2, 2021, in office a matter of weeks, he issued an executive order stating that:
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[R]esources that should be invested in policies targeting actual threats ... are [being] squandered on efforts to stymie legitimate asylum seekers.
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[T]he United States ... will restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last 4 years that contravened our values and caused needless human suffering.
Biden’s executive order revoked President Trump’s Executive Order 13767 of January 25, 2017, which had provided that:
It is the policy of the executive branch to end the abuse of ... asylum provisions currently used to prevent the lawful removal of removable aliens. ... [DHS] shall immediately take all appropriate action to ensure that the ... asylum provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise removable aliens.
The executive order revoked President Trump’s presidential memorandum of April 29, 2019, which had provided that:
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[I]llicit organizations benefit financially by smuggling illegal aliens into the United States and encouraging abuse of our asylum procedures. This strategic exploitation of our Nation's humanitarian programs undermines our Nation's security and sovereignty. The purpose of this memorandum is to strengthen asylum procedures to safeguard our system against rampant abuse of our asylum process.
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It is the policy of the executive branch to manage our humanitarian immigration programs in a safe, orderly manner that provides access to relief or protection from removal from the United States for aliens who qualify, and that promptly denies benefits to and facilitates the removal of those who do not.
The results of Biden’s Folly are all too apparent. As Andrew Arthur reported at the end of 2022:
As the border disaster that the Biden administration created has festered and grown, DHS has released somewhere around 1.6 to 1.7 million migrants (all of whom were supposed to be detained) into the United States. I’d like to give you a more specific figure, but not surprisingly, the administration has not been forthcoming with that data.
I would humbly suggest that if President Biden runs again in 2024, instead of reissuing his “Biden Plan for Securing Our Values as a Nation of Immigrants”, he engage in a little plagiarism (the sincerest form of flattery) and reissue candidate Trump’s 2016 plan.