Who Will Be in Charge of Asylum?

It is expected that the Biden administration will require the Department of Homeland Security (DHS) to cease carrying out its responsibilities under Title 42 to expel illegal aliens apprehended at the border, as it has been doing since March 2020 in response to the Covid pandemic. As my colleague Andrew Arthur notes, even the administration acknowledges that the inevitable result will be a massive surge at the border of likely unprecedented proportions (absent a pedal-to-the-metal resumption of the Migrant Protection Protocols (MPP)).

To add insult to injury, the Biden administration is coupling this imminent self-inflicted catastrophe with a new rule that, as Arthur and Rob Law warn, will “remove several crucial safeguards put in place to ensure that asylum grants [to illegal aliens apprehended at the border] are not subject to fraud and abuse.” The inevitable result as I see it is that an unprecedented proportion of these illegal border-crossers will be magically transformed into “refugees”, legalized, and showered with more federal welfare benefits than even most legal permanent residents could hope for.

The rule will, in addition to repealing many of the asylum reforms put in place by the Trump administration, put U.S. Citizenship and Immigration Services “asylum officers” (AOs), rather than Department of Justice (DOJ) immigration judges (IJs), in charge of granting asylum to illegal aliens apprehended at the border and placed into expedited removal. As Arthur and Law argue:

[Up until now,] only IJs could grant asylum to aliens apprehended at the border who were then placed into “expedited removal”. ... [Before an IJ,] the alien ... was allowed to present evidence (including testimony) concerning his or her asylum claim [and] an ICE attorney representing the interests of the American people was allowed to cross-examine and impeach the alien respondent, offer contradictory evidence, and appeal an erroneous asylum grant. Under the administration’s new rule ... those procedural safeguards are thrown out the window. The AO elicits the alien’s claim during a “non-adversarial” interview during which the alien is allowed to have an attorney (but you, the American people, aren’t). If the AO grants asylum, even contrary to law, logic, and the weight of the evidence ... [t]here is no ICE lawyer to appeal that decision.

But there is another reason why this rule will have such a devastating impact, which is that the proverbial fox is being placed inside the hen house. The very same asylum officer corps that spent four years zealously endeavoring to undermine Trump administration efforts to secure our southern border will be given the keys to the kingdom, an almost unfettered ability to convert the coming surge of illegal border crossers into refugees (technically, “asylees”).

First, I should note that the prior work experience of asylum officers usually entails working in the immigrant rights advocacy community. The Intercept notes that:

[The former] director of the asylum division ... had previously worked as a lawyer at ... an immigrant legal services nonprofit, and the asylum officers who worked under him at USCIS have generally had similar backgrounds. Many are highly educated attorneys who have worked in nonprofits assisting [illegal aliens] with asylum claims rather than trying to deport them.

Not surprisingly, these asylum officers (and their supervisors) by and large believe that the actions taken by the Trump administration to remedy the southern border crisis were misguided if not actually malevolent. One officer called the MPP and the rule that barred aliens from asylum eligibility who had failed to seek asylum in countries through which they had traveled en route to the U.S. “a supervillain plan” that made him “feel[] horrified, even physically sickened”. The Los Angeles Times reported that an asylum officer quit after deciding that he “wasn’t going to implement President Trump’s latest policy to restrict immigration. ... ‘They’re definitely immoral ... [a]nd I’m not doing them’”, he told his supervisor in (of course) San Francisco. The Times found that:

[A]cross the country — according to asylum officers ... as well as government officials — asylum officers are calling in sick, requesting transfers, retiring earlier than planned and quitting — all to resist Trump administration immigration policies. ... “What’s my moral culpability in that? ... My signature’s on that paperwork. And that’s something now that I live with.” The asylum officers objecting to the administration’s immigration policies say they run counter to the laws passed by Congress, as well as their oath to the Constitution and extensive training, which includes how to detect fraud or any potential national security concerns.

Oh yes, asylum officers are so dedicated to rooting out fraud that one claimed the appointment of a fraud investigator as director of the asylum division “[was] just the latest development in the Trump administration’s assault on the asylum system”. How dare the Trump administration have appointed a fraud investigator? If the New York Times says that pervasive asylum fraud is a myth, then it is a myth:

A Chinese woman ... had applied for asylum, claiming that she had been forced to get an abortion in China ... and she was anxious about her coming interview. ... She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false. But the lawyer ... told her to relax. ... “You are making yourself nervous. ... All you would be asked is the same few rubbish questions. ... Just make it up[.]” ... [The lawyer] and a paralegal briefed her on the sequence of fictitious events she had to memorize. ... He said asylum was nearly a foregone conclusion: Cases like hers were getting approved without a problem. “It’s too easy,” he said.

The Times goes on:

Peter Kwong, a professor at the City University of New York ... said it was an open secret in the Chinese community that most asylum applications were at least partly false, from fabricated narratives of persecution to counterfeit supporting documents and invented witness testimony. ... False asylum petitions are among the most common forms of immigration fraud, in part because they are difficult to detect, experts said. ... [A]sylum fraud cuts across all immigrant groups, officials say. ... And while many such claims are legitimate, officials and industry specialists said, an untold number are not. Mr. Kwong said the cases were easy to fake. “The law itself provides a huge loophole, and that loophole cannot be closed because of the politics,” he said. ... Narratives and documents are recycled from client to client, with the names and dates changed — though sometimes the lawyers forget to do even that.

. . .

[W]hile working at an immigration law office in Queens ... [a former employee described that] one of his tasks was to use Photoshop to superimpose clients’ faces onto file photos of people who had been beaten by the police in China. “Everything was prefabricated,” he said.

. . .

[A] star witness ... who worked as an assistant at several law firms and pleaded guilty to immigration fraud, said he would craft a story based on characteristics like clients’ ages and schooling. He would feed the Falun Gong narrative to uneducated immigrants because it was easiest to remember ... [while] Christianity claims went to young immigrants with at least a high school education. When clients veered off-script during interviews with asylum officers, prosecutors said, some interpreters would falsely translate the client’s words.

In a separate story, the Times concluded that:

A shadowy industry dedicated to asylum fraud thrives in New York. ... Immigrants peddle personal accounts ripped from international headlines. ... The embellished stories go in and out of fashion along with the news of the day. ... West Africans claim genital mutilation or harm from the latest political violence. Albanians and immigrants from other Balkan countries claim they fear ethnic cleansing. Chinese invoke the one-child policy or persecution of Christians, Venezuelans cite their opposition to the ruling party, and Russians describe attacks against gay people. ... Of course, thousands of those claims are legitimate. But each cataclysm provides convenient cover stories for immigrants desperate to settle here for other reasons. ... “When there’s a problem anywhere, a horrible slaughter in Somalia, wherever, the first couple of years of those cases are very real,” said ... an immigration lawyer in Manhattan. “Then the next four or five years, they just mimic those stories.”

Well, I’d hazard a guess that today’s Times would spike such articles. In any event, the screeds of asylum officers don’t just reflect the views of opinionated gadflys. They are views propounded by their union representatives. An AO who served as a special representative of the union local representing 14,500 USCIS employees told a Georgetown University audience that “[o]ne of [Trump’s] signature campaign things, and now we’ve seen one of the [administration’s] signature wrecking balls, I don’t know how else you could call it, has been to radically change the face of immigration without any legislative action whatsoever.”

And the union locals don’t just say this when throwing red meat to sympathetic academic audiences. They write it in amicus briefs seeking to convince federal courts to enjoin and declare unconstitutional Trump administration efforts to secure the border. In fact, they use such reckless, inflammatory, and preposterous language that one must question whether the AO’s they represent have the judicial temperament necessary to administer the asylum system in the unbiased manner in which Congress intended.

Let me give a few examples. Regarding a DHS rule issued to establish a regulatory structure to implement safe third-country agreements, the authority for which Congress provided in order to bar aliens from applying for asylum who can be removed, pursuant to a bilateral or multilateral agreement, to a third country in which they would not be persecuted and would have access to a full and fair procedure for determining their protection claim, the union local representing about 700 asylum and refugee officers said that:

• The Rule “compels [its] members to follow departmental directives that conflict with their oath to uphold the laws of the United States.”
• “[T]he Trump Administration has turned the asylum system on its head. The most extreme in a recent series of draconian changes ... dismantles our carefully crafted system of vetting asylum claims.”
• “Utterly indifferent to the safety of asylum seekers, this Kafkaesque process stands in flagrant violation of our domestic law and international treaty obligations.” (OK, let’s play the Kafka card.)
• ”The ... Rule betrays [America’s] tradition [as a refuge for the persecuted] and forces [union] members to take actions that violate their oath to uphold our nation’s laws.”
• “America’s refugee resettlement and asylum systems are under siege. The Trump Administration has implemented a barrage of measures whose impact and intent are to dismantle the pillars of our defining role as a refuge for the world’s persecuted, its ‘huddled masses yearning to breathe free.’” (When the facts and the law are not with you, play the Emma Lazarus card!)
• “The ... Rule is the most extreme ... measure[] to date. ... [A] carefully crafted asylum system has been upended, its aims nightmarishly subverted from protection to punishment for seeking to cross our southern border.”
• “[The asylum system] now erects barriers indiscriminately and without regard for the safety of the most vulnerable of people.”
• “The ... Rule ... places [the union’s] members at risk of participating in the widespread violation of international and domestic law — something they did not sign up to do ”. (If they became asylum officers after 1996, they did in fact sign up to do so, since that was the year that Congress passed and President Clinton signed into law express statutory authorization for safe third-country agreements.)
• “[The Rule] evinces a callous disregard for the well-being of asylum seekers in gross violation of our domestic law and post-war treaty obligations.”
• “[The Rule] all but ensures violation of the non-refoulement obligation.”
• “These insurmountable evidentiary hurdles create a Kafkaesque process that ensures our country will return vulnerable people to a place where they will be persecuted.” (Kafka!)
• “The ... Rule presents a stark example of government agencies completely abandoning ... neutral and rational analysis ... in favor of implementing the political agenda of the executive that is devoid of any rationality.”
• “When the members of [the union local] enlisted to become asylum officers, they ... did not sign up to carry out policies that defy our nation’s asylum laws and treaty obligations and erode the moral fabric of our nation.”

Let me give another example. Regarding the MPP, which, as I have written, was “wildly successful, in a very real sense being the closest thing we had to a silver bullet to bring the border under control ... prior to the arrival of the Covid-19 pandemic”, the union local’s brief claimed that:

• “Asylum officers . . . . face a conflict between the directives of their departmental leaders to follow the MPP and adherence to our Nation’s legal commitment to not returning the persecuted to a territory where they will face persecution. They should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.”
• “By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations.”
• “[A]t the time of the interviews, many asylum seekers do not know whether they may face persecution in Mexico since they were only passersby through Mexico en route to the United States”. (Wait a second, is the job AO’s signed up for to try to convince aliens that they will be persecuted?)
• “[The MPP] violates our Nation’s longstanding tradition and international treaty and domestic obligation not to return those fleeing persecution to a territory where they will be persecuted.”

The brief even claims that:

[T]he MPP is entirely unnecessary, as our immigration system has the foundation and agility necessary to deal with the flow of migrants through our Southern Border. The system has been tested time and again, and it is fully capable — with additional resources where appropriate — of efficiently processing asylum claims by those with valid claims while removing those that are not entitled to protection.

This assertion is laughable. As DHS and DOJ explained at around the same time:

The United States has experienced an overwhelming surge in the number of non-Mexican aliens crossing the southern border and seeking asylum. This overwhelming surge and its accompanying burden on the United States has eroded the integrity of our borders.

And:

In recent weeks, United States officials have each day encountered an average of approximately 2,000 inadmissible aliens at the southern border. At the same time, large caravans of thousands of aliens, primarily from Central America, are attempting to make their way to the United States, with the apparent intent of seeking asylum after entering the United States unlawfully or without proper documentation.

And, in a very real sense, asylum officers can share in the blame for catalyzing this surge in illegal immigration. As DHS and DOJ have explained:

[A]liens who unlawfully enter the United States may avoid being removed on an expedited basis by making a threshold showing of a credible fear of persecution at a initial screening interview. [T]those aliens are often released into the interior of the United States pending adjudication of such claims by an immigration court. ... Once ... released, adjudications can take months or years to complete.

The number of aliens making such claims had been skyrocketing, in large measure because of the extraordinarily high approval rates of asylum officers: “[T]he percentage of cases in which asylum officers found that the alien had established a credible fear — leading to the alien’s placement in full immigration proceedings ... has also increased [from] about 77% of the time [in FY2008 to] about 89% [in FY2018].” This created a strong “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”. How strong?

The United States has experienced a dramatic increase in the number of aliens encountered along or near the southern land border with Mexico. This increase corresponds with a sharp increase in the number, and percentage, of aliens claiming fear of persecution or torture when apprehended or encountered by DHS. [O]ver the past decade, the ... percentage of aliens subject to expedited removal and referred ... for a credible-fear interview on claims of a fear of return has jumped from approximately 5 percent [about 5,000] to above 40 percent [about 97,000]. ... Only a small minority of these individuals, however, are ultimately granted asylum. ... [A] large majority of the asylum claims raised by those apprehended at the southern border are ultimately determined to be without merit. ... From FY 2016 through FY 2018, among aliens who received a positive credible-fear determination, only ... an average of 4,021 per year ... were granted asylum (14 percent of all completed asylum cases, and about 36 percent of asylum cases decided on the merits).

The worldview of asylum officers might help explain their extraordinarily high grant rates. The brief states that “[i]f migrants entering the United States through our Southern Border are given the protections that our system typically affords to those fleeing persecution, most would be able to establish that they are likely to face persecution in Mexico if forced to stay there.” Yes, asylum officers apparently believe that most aliens illegally crossing our southern border should qualify for asylum!

Well, the good news is that we soon may not have an illegal alien problem anymore along our southern border. The bad news is that we will have an even larger “refugee” problem along our southern border.

As a final note, let me add that AO’s are widely assumed to have been behind many of the leaks of internal DHS documents designed to undermine the Trump administration’s enforcement initiatives. The leaks have even continued under the Biden administration. That led me to tweet, tongue firmly in cheek, “Good to know that the pipeline for leaked DHS documents to [Buzzfeed reporter] Hamed Aleaziz remains operational under Biden!” Of course, Aleaziz tweeted in response “Please listen to a former Trump DHS official and be in touch if you work at DHS.” I should note that I have great respect for Aleaziz as a journalist. He deserves a pay raise for his extraordinary pipeline, which I assume is the one pipeline that the Biden administration can get behind!