AG Sessions Takes on the 'Credible Fear Loophole'

Vindication from the top

By Andrew R. Arthur on October 16, 2017

On Thursday, October 12, 2017, Attorney General Jeff Sessions spoke at the Executive Office for Immigration Review (EOIR). EOIR is the agency of the Department of Justice with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA).

Interestingly, even though EOIR does not have direct jurisdiction over "credible fear" claims, the subject of credible fear was a major talking point in his statements, largely because the agency has to deal with the downstream effects of the flawed implementation of that system. I consider the attorney general's interest to be vindication for those of us who have been attempting to draw attention to the vulnerability posed by this process for years.

Just this week, the Center published two separate posts of mine explaining how a Somali national charged in connection with attacks on five different individuals in Edmonton, Alberta, Canada, likely gamed the credible-fear system to first gain entry into the United States, get released, and then make his way of the north.

Because the weaknesses in the system are under-reported, they are largely ignored, even within the immigration community. Most of the attention has been directed toward the legal immigration system, and the potential that terrorists and criminals can exploit that system, as we have seen happen in Europe and elsewhere.

At least aliens who enter under the legal immigration system are subject to vetting, of one sort or another, and however cursory. Border Patrol agents and asylum officers on our Southwest border who must deal with aliens who arrive illegally and claim credible fear often have little to rely on besides whenever documents those aliens possess and their self-serving assertions.

I testified about the shortcomings of the system before the House Judiciary Committee's Subcommittee on Immigration and Border Enforcement in March 2017, and wrote about them in a report that I prepared for the Center in April 2017. Todd Bensman, a former reporter and now terrorism expert, has also written extensively on this subject. Mr. Bensman, my colleague Mark Metcalf, and I also discussed these issues in a program that the Center presented at the National Press Club in May 2017.

Aside from these efforts, however, the national security weaknesses that are inherent in the credible-fear system have largely been ignored by the government and the media. There is now a possibility, however, that will change, thanks to the spotlight brought to this issue by Attorney General Sessions.

As the attorney general told the assembled guests at EOIR:

Over the years, Congress has rationally passed legislation designed to create an efficient and fair procedure to properly admit persons and expedite the removal of aliens who enter the United States illegally. Obviously, the U.S. cannot provide a jury trial every time an immigrant is caught illegally entering the country nor was it ever intended.

But also over the years, smart attorneys have exploited loopholes in the law, court rulings, and [a] lack of resources to substantially undermine the intent of Congress.

They have been able to do so because this expedited removal contains an exception. For aliens who have an actual, legitimate fear of returning to their homeland, he or she can seek asylum.

He explained:

This is how it works. The Department of Homeland Security is tasked in the first instance with evaluating whether an apprehended alien's claim of fear is credible. If DHS finds that it may be, the applicant is placed in removal proceedings and allowed to present an asylum claim to an immigration judge.

If, however, DHS finds that the alien does not have a credible fear, the alien can still get an immigration judge to review that determination. In effect, those who would otherwise be subject to expedited removal get two chances to establish that their fear is credible.

But in 2009, the previous Administration began to allow most aliens who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes—and case law that has expanded the concept of asylum well beyond Congressional intent—created even more incentives for illegal aliens to come here and claim a fear of return.

The consequences are just what you'd expect. Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down.

The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims. This, of course, undermines the system and frustrates officers who work to make dangerous arrests in remote areas. Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing—if the alien shows for the hearing.

As importantly, the attorney general quantified the extent of the problem, and how it has been exploited over the years:

Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016 — nearly a 19-fold increase — overwhelming the system and leaving those with just claims buried.

The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000.

All told the Executive Office for Immigration Review has over 600,000 cases pending — tripled from 2009.

And the adjudication process is broken as well. DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.

But even more telling, half of those that pass that screening — the very people who say they came here seeking asylum — never even file an asylum application once they are in the United States. This suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally.

Not surprisingly, many of those who are released into the United States after their credible fear determination from DHS simply disappear and never show up at their immigration hearings. Last year, there were 700 percent more removal orders issued in absentia for cases that began with a credible fear claim than in 2009. In fact, removal orders issued in absentia in all immigration cases have doubled since 2012 — with nearly 40,000 in the 2017 fiscal year.

No one denies that we need to have a process by which aliens fleeing from a legitimate threat can seek refuge in the United States. These numbers make clear, however, that a significant number of the aliens who are found by asylum officers to have a credible fear are in fact just manipulating the system.

Were this simply a problem of aliens exploiting a loophole to enter the United States quasi-legally, it would be bad enough. As I noted in my report, as Todd Bensman has detailed, and as the attorney general explained, though, some of those who are gaming the system are doing so with malevolent intent. In particular, each of us referred to the case of Ahmed Dhakane, a Somali national who received 10 years in federal prison "after admitting to making false statements under penalty of perjury on his application for asylum."

Dhakane "ran a human smuggling operation based in Brazil that specialized in migrants from Somalia and other parts of East Africa." As the Christian Science Monitor reported:

In his Brazilian smuggling operation, Dhakane provided false passports and other forged travel documents. In addition, according to his federal court file, he bribed Brazilian immigration officials and instructed his customers how to make false asylum claims once they arrived in the [United States].

According to the Christian Science Monitor: "At least five of [Dhakane's] clients were supporters or members of Al Shabab or associated Somali terror groups," including one nicknamed "Al Qaeda" who came to California.

The attorney general could also have mentioned the case of Abdulahi Hasan Sharif, the Somali who's been charged in Edmonton in connection with an attack on a police officer and four others on Saturday, September 30, 2017. According to the CBC, he "walked into the United States" from Mexico at the San Ysidro Port of Entry on July 12, 2011, with "no documents and no right to be there. While there's been no confirmation that he entered through the credible-fear system, there's no other way, given these facts, that he could have come to the United States in this manner.

The attorney general asserted that the administration was aware of these problems, and he promised that the president's immigration policies would address these issues:

President Trump understands this is a crisis. And so do the American people.

The President promised voters he would return this country to a lawful system of immigration during his campaign and he is going to deliver. His priorities are mainstream and common sense. And — whether it's an end to sanctuary city policies or an e-verification system to ensure lawful employment — they are supported by the vast majority of Americans.

Congress must pass the legislative priorities President Trump announced this week, which included significant asylum reform, swift border returns, and enhanced interior enforcement.

We can impose and enforce penalties for baseless or fraudulent asylum applications and expand the use of expedited removal. We can elevate the threshold standard of proof in credible fear interviews. We can expand the ability to return asylum seekers to safe third countries. We can close loopholes and clarify our asylum laws to ensure that they help those they were intended to help.

We can turnaround this crisis under President Trump's leadership.

What we cannot do — what we must not do — is continue to let our generosity be abused, we cannot capitulate to lawlessness and allow the very foundation of law upon which our country depends to be further undermined.

Now that the credible fear loophole has been spotlighted by the administration, Congress must take action to address the issue. One Dhakane is one too many, and Sharif's victims deserve at least that much.