Asylum Reform Bill Passes out of Committee

By Andrew R. Arthur on July 27, 2017

On Wednesday, June 26, 2017, the House Judiciary Committee passed an amendment in the nature of a substitute of H.R. 391, the "Asylum Reform and Border Protection Act of 2017", on a party-line vote after an often-spirited debate.

As the press release for the provision states, the bill "makes a number of improvements to our nation's laws to prevent fraud and abuse in the asylum system and ensure that it is reserved for those truly fleeing persecution in their home countries."

The bill had originally been offered by Rep. Jason Chaffetz, who recently left the House, and is now sponsored by Rep. Mike Johnson of Louisiana. As Rep. Johnson stated about the bill:

Securing our borders should always be a top priority, and reversing previous years of lax enforcement to re-establish stability in our immigration system is the only way to ensure the legal path to citizenship is followed again. Decades of an exposed and broken border have not only encouraged more immigrants to enter the United States illegally, but have also led to an increase in human and drug trafficking. Making matters worse, terrorists have been known to utilize weaknesses in immigration laws to gain entry and carry out their attacks. My legislation ensures our asylum programs are used not for the ill-intent of bad actors, but for those truly in need of refuge.

My April 2017 Backgrounder detailed a significant, but as yet unmeasured, level of fraud in the "credible fear" process, which is the first step in many asylum claims. As I stated therein:

Unlike refugees, who are screened before coming to the United States and can be denied refugee status before they enter this country, aliens who enter illegally and claim a "credible fear" of persecution have not been screened before physically entering the United States ... the process for screening those individuals after they enter the United States is vulnerable to fraud and abuse.

H.R. 391 would make several important amendments to the Immigration and Nationality Act (INA) to address vulnerabilities in the "credible fear" process. Section 3 of the amendment in the nature of a substitute would amend the definition of "credible fear of persecution" to clarify that a finding of credible fear must be supported by statements that are "more probable than not true". This would preclude a finding of credible fear where there are serious inconsistencies within the applicant's statements, and between those statements and other evidence of record.

Section 4 therein would bring uniformity to the questions that are asked by asylum officers of credible fear applicants, and mandate that the questions and answers be recorded, to the extent practicable, in a uniform fashion. It would also mandate competent interpreters be utilized in the interview process, which will protect both the applicant and the government. Finally, it would require that the recording of the credible-fear interview be included in the record of proceedings that is sent to the immigration court.

This latter requirement will address the issue that occasionally arises in court where inconsistencies between the alien's in-court statements and statement to the asylum officer cannot be used by the court in its credibility finding because the alien denies the validity of the earlier statement, or denies that it reflects accurately the statements that he or she made.

Interestingly, a provision that resulted in significant debate in the committee involved the notice given to the alien concerning the consequences of filing a frivolous asylum application. Section 208(d)(6) of the INA states:

If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph [208(d)(4)(A) of the INA], the alien shall be permanently ineligible for any benefits under this Act, effective as of the date of a final determination on such application.

The referenced provision, section 208(d)(4) of the INA provides, in pertinent part:

At the time of filing an application for asylum, the Attorney General shall -(A) advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum...

The regulation implementing these provisions, 8 C.F.R. § 1208.20 states:

For applications filed on or after April 1, 1997, an applicant is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application. For purposes of this section, an asylum application is frivolous if any of its material elements is deliberately fabricated. Such finding shall only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim. For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking withholding of removal.

In passing, I would note that this regulatory definition of "frivolous" is likely more restrictive than Congress intended, because it would not include non-fraudulent applications that lack merit but that were filed to delay removal.

In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board of Immigration Appeals (BIA) established a four-part test for determining whether an asylum applicant has filed a frivolous asylum application, as the Immigration Judge Benchbook explains:

(1) the respondent must receive notice of the consequences of filing a frivolous application; (2) the Immigration Judge must make a specific finding that the alien knowingly filed a frivolous application; (3) there must be sufficient evidence that a material element was deliberately fabricated; and (4) there must be an indication that the respondent has been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

Section 12 of the amendment in the nature of a substitute to H.R. 391 would require that a written warning of the consequences of filing a frivolous asylum application appear on the asylum application itself, and makes clear that this warning would constitute notice to the applicant of the consequences of filing a frivolous asylum application. Opponents of this provision argued that these warnings would be insufficient because many asylum applicants do not speak English, to which supporters replied that preparers were obliged to explain to the applicant the application itself already.

Section 5 of the amendment in the nature of a substitute would reform by placing limits on the executive branch's parole power, which is codified at section 212(d)(5) of the INA. That authority was abused by the Obama administration, as Sens. Chuck Grassley and Mike Lee, and then-Senator Jeff Sessions, detailed in a letter to then-Secretary of Homeland Security Jeh Johnson in November 2015.

Section 14 therein would limit eligibility for asylum for aliens who have been the victims of generalized violence. Many of the cases in the immigration-court backlog, and many of the credible fear cases in the last four years, have involved asylum claims based on gang violence and common crime in Central America. The BIA and courts of appeal, however, have struggled to place those claims into the traditional asylum framework.

This amendment would make it clear that such claims would not render an applicant eligible for asylum, unless they would satisfy the other requirements for asylum, specifically by requiring victims of crimes generally and criminal gangs in particular to establish that the applicant's race, religion, national origin, or political opinion was the "main motivating factor for the commission of the crime, or the fear of being the victim of a crime." In essence, it would clarify that being the victim of a crime, without more, does not render the applicant a "member of a particular social group" for asylum eligibility under section 208(b)(1)(B)(i) of the INA.

It is unclear when, or whether, H.R. 391 will make its way to the House floor.