Asylum Officers Granting Asylum in Border Cases at Almost Twice the Rate of Judges

No surprise, given the lack of safeguards on the system

By Andrew R. Arthur on October 11, 2022

DHS has begun publishing statistics on the number of aliens who have been granted asylum by USCIS asylum officers under a Biden administration plan “to ensure that those subject to expedited removal who are eligible for asylum are granted relief quickly and those who are not are promptly removed”. As the Center predicted in comments it submitted about this poorly thought-out plan, officers are granting asylum to border migrants at nearly twice the rate that immigration judges had been, notwithstanding DHS Secretary Alejandro Mayorkas’s assertions to the contrary.

Expedited Removal and Credible Fear. In 1996, Congress was concerned that illegal entrants were gaming the asylum system to obtain employment authorization. In response, it amended the immigration laws to allow DHS to quickly remove border migrants without sending them to immigration court — a process known as “expedited removal”.

That amendment, however, directed asylum officers to interview entrants requesting asylum to determine whether they had a “credible fear” of persecution, essentially a screen to weed out truly bogus claims.

The credible fear standard is a low one, and migrants who cleared it (as 83 percent did between FY 2008 and the fourth quarter of FY 2019 according to DOJ statistics) were placed into removal proceedings to seek asylum from an immigration judge. Significantly, the U.S. government is represented in those proceedings by ICE attorneys, who can challenge the aliens’ claims and offer contradictory evidence.

Under that system, both the alien and the government can appeal the judge’s decision to the Board of Immigration Appeals (BIA), ensuring the interests of the alien and the American people are protected.

The Morton Directive and Alien Releases. What’s more, and continuing a rule that was in place for arriving aliens since 1903, Congress in 1996 directed DHS to detain all aliens subject to expedited removal, from apprehension through the credible fear process and until their asylum claims were adjudicated by an immigration judge.

In December 2009, however, then-ICE Director John Morton issued a directive authorizing the release on “parole” of aliens subject to expedited removal who had cleared the low credible-fear threshold. Parole is an extremely limited authority Congress has provided to DHS to allow inadmissible aliens to enter the United States without being formally admitted.

Why do I say that parole is an “extremely limited authority”? By its terms, the parole statute allows DHS to release an otherwise inadmissible alien (including an illegal entrant) “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

Despite this fact, the Morton directive was implemented without any court challenge. As could reasonably be expected, however, the number of illegal entrants apprehended at the border who claimed a credible fear of return soared.

According to a DHS report issued in October 2019, between FY 2006 and FY 2009, anywhere between 4 and 5 percent of aliens subject to expedited removal claimed credible fear — roughly about 5,000 and 5,400 claims per year. In FY 2010, the fiscal year Morton issued his directive, that surged to 7 percent (just fewer than 9,000 claims), and by FY 2013, 15 percent of aliens in expedited removal claimed credible fear (36,000-plus claims).

In FY 2018, 42 percent of aliens subject to expedited removal asserted a credible fear of return, more that 99,000 claims.

Remain in Mexico. The Trump administration never rescinded the Morton directive, but by the time Trump took office in FY 2017, there were so many aliens in expedited removal claiming a credible fear of return (78,564) that DHS likely would have quickly run out of detention space.

In lieu of detaining those aliens, however, the Trump administration implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, aliens apprehended entering illegally across the Southwest border were returned to await their removal hearings at “port courts” along the border. If granted asylum, they would be admitted; if denied, they would be removed.

In that October 2019 report, DHS determined 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.

The Exploitation of Biden’s Border Policies. Then-candidate Joe Biden condemned Remain in Mexico, and shortly after taking office, suspended it. Mayorkas then tried terminating MPP twice — first in June 2021 and then in November 2021 — even while court challenges filed by state plaintiffs to force DHS to continue the program were ongoing. In June, the Supreme Court held that the lower courts could not enjoin MPP’s termination, sending both the challenges and the program back for further review.

With MPP off the table, and the Biden administration asking Congress to cut DHS’s already limited detention space, illegal entries have skyrocketed. In FY 2021, Border Patrol agents at the Southwest border set a new yearly record for apprehensions of illegal migrants, only to break that record in FY 2022 by July.

In a recent analysis, I explained that more than 1.3 million of those aliens apprehended under Biden have been released into the United States — despite the fact they are all supposed to be detained.

On top of those migrant apprehensions and releases, more than 399,000 other illegal entrants evaded agents at the Southwest border and made their way into the United States in FY 2021, and an additional 599,000 have been able to do so in FY 2022 — bringing the total to around 2.2 million aliens who have exploited Biden’s border policies.

Deterring Illegal Entries Is No Longer Government Policy. Why are so many aliens entering illegally now? In a break from every prior administration, the current one has eschewed deterring illegal entrants as a border policy. Instead, as Mayorkas has explained, the administration’s objective at the border is “to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system”. Of course, there is nothing safe, orderly, or legal about illegal immigration.

The Credible Fear and Asylum Processing Interim Final Rule. The cornerstone of that plan is the “Credible Fear and Asylum Processing Interim Final Rule”, which was published in March and took effect in May.

That rule allows asylum officers — not just immigration judges — to grant asylum to aliens found to have passed the credible fear bar. If denied, the alien can appeal that decision in a modified version of the old process to an immigration judge, and if the court denied as well, to the BIA, giving the alien an additional “bite at the apple”.

The Center and others submitted lengthy comments to the proposed version of this rule, explaining it would violate the immigration laws and also encourage more illegal immigration, to no avail. Notably, however, 20 states have filed a challenge to the rule in federal court in Louisiana, while the state of Texas has filed its own suit against it in a U.S. district court there.

Among the Center’s concerns is that the new rule allows asylum officers to grant asylum — placing the alien on a path to citizenship — following a “nonadversarial hearing”, at which the alien could be represented by counsel, but the American people wouldn’t. That means no cross-examination, no impeachment evidence, and no appeal if the asylum officer got it wrong.

Simply put, the proposed system would offer more protections to illegal entrants, while removing safeguards protecting the most essential of U.S. interests — citizenship.

Mayorkas’ Claim. In a September 27 New York Times article, Mayorkas asserted that the percentage of aliens granted asylum under the new rule — “about a quarter of the 99 cases” that had been adjudicated at that point — “was similar to the percentage” granted under the “older, slower” immigration court system.

That claim passed without comment, even though DOJ statistics reveal that even “a quarter” of asylum grants by asylum officers was significantly higher than the immigration-judge grant rate had been. Between FY 2008 and the fourth quarter of FY 2019 — a nearly 12-year period — fewer than 17 percent of aliens who had received positive credible fear determinations were ultimately granted asylum.

That means that even according to Mayorkas’ own vague assessment, the asylum officer grant rate under the new rule was about 50 percent higher than it had been when asylum claims were being heard exclusively by immigration judges.

The Real Asylum Officer Grant Rate. Which brings me to DHS’ “Asylum Processing Rule” statistics.

They show that between June and September, asylum officers conducted 572 asylum merits interviews (AMIs) following a positive credible fear determination. In 49 of those cases, officers granted asylum, while 110 others were referred to immigration judges (essentially a first-stage denial), 49 were administratively closed (which the report admits appears to be a data error), and 364 are pending completion.

In other words, asylum officers have granted asylum in nearly 31 percent of the border cases that they heard to completion — or almost twice as often as immigration judges historically had.

I would assert that the reason for that higher grant-rate is that AMIs provide the system with fewer protections than removal proceedings before immigration judges. Simply put, there are two sides to every story, but asylum officers only hear one of them.

As noted, an asylum grant places an illegal entrant on a path to citizenship, and therefore more protections are better than fewer. What’s more, if twice as many illegal migrants are being granted asylum under the new rule, more foreign nationals will choose to enter the United States illegally to obtain the benefits of an asylum grant.

The reviewing district courts in Louisiana and Texas should take a long look at these statistics. For what it’s worth, however, Congress may want to ask Mayorkas some questions about the lack of safeguards under the new rule the next time that he comes to testify.

With due respect to the secretary, as an immigration judge I heard hundreds of cases from illegal entrants in detention and did so quickly, in about 40 days. When Congress’ laws are enforced, illegal migrants are detained until and unless they are granted asylum, and both sides are heard, the “older” system works just fine — and likely better than the Biden administration’s plan.