On March 24, DHS and DOJ announced that they would be taking the authority to adjudicate asylum claims made by illegal aliens apprehended at the border away from immigration judges (IJs) and giving it to asylum officers (AOs), all in the interest of making the asylum process “more efficient” and to “ensure fairness”. Don’t believe them. This is a plan to rubberstamp asylum grants and hide the disaster at the Southwest border by turning “illegal aliens” into “asylum seekers” with the stroke of a pen.
None of this is “news”, per se, as the administration has been signaling this change since last April. As Andrew Arthur explained then:
On April 1, NPR reported that the Biden administration is considering overhauling the asylum process for arriving aliens (including illegal migrants) at the border, along the lines of a September 2018 proposal from the Migration Policy Institute (MPI). It is a bad plan, which would do little if anything to discourage illegal entrants, instead giving them two “bites” at the asylum “apple” and delaying their removals.
DHS and DOJ published a notice of proposed rulemaking (NPRM) along these lines in late August, and many submitted comments explaining the statutory and practical issues with this proposal (the departments received about 5,000 such comments in response to that August notice).
Among those who filed comments was the Center. Our 83-page response explained in detail how this proposal violates the Immigration and Nationality Act (INA), the Homeland Security Act of 2002, and several other provisions of law. Not to mention that the NPRM is bad policy even if it were legal.
As significantly, however, the Center explained that allowing AOs to grant asylum to illegal aliens (which will place them on a path to citizenship) instead of IJs would remove several crucial safeguards put in place to ensure that asylum grants are not subject to fraud and abuse.
Here’s why: Under law prior to this most recent announcement, only IJs could grant asylum to aliens apprehended at the border who were then placed into “expedited removal” proceedings, and then only at the end of formal removal proceedings.
In those proceedings, the alien respondent was allowed to present evidence (including testimony) concerning his or her asylum claim. During that presentation of evidence, 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 (formally known as an "interim final rule" or IFR), 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, that’s it. There is no ICE lawyer to appeal that decision.
Advocates of this proposal will point to the purported “AO supervisory review” of the AO’s decision as the equivalent of an ICE appeal. Don’t believe it. Overworked supervisors will bless the vast majority of AO grants simply to keep the train on the tracks.
Why do we refer to this as “rubberstamping”?
For the simple reason that the Biden administration can now impose its “vision” of what asylum should be merely by publishing “guidance” telling the AOs how they should rule in various scenarios. No disrespect intended, but AOs are bureaucrats, not that different in this asylum process from the DMV clerk who is deciding whether to issue you a new REAL ID-compliant driver’s license, or not.
IJs, on the other hand and regardless of what you may hear, are “independent” adjudicators who can ignore such directives when interpreting the law. And again, if they get it wrong (and they sometimes do), the appellate process is there to (more or less) ensure that the result comports with congressional intent.
So why exactly would the Biden administration be doing this now? While we are not privy to the inner workings of the White House, one positive benefit for the president is that this proposal will convert all illegal migrants into “asylum seekers”. This is accomplished by treating the notes from the credible fear screening as an asylum application. Gone will be the days of the economic migrants who said the magic words “credible fear” but then never bothered to file an asylum claim after being released into the interior. And just like that, the Biden administration, from their perspective, has turned the epic disaster at the Southwest border into something of a “humanitarian aid mission”.
Asylum grants for illegal aliens are bound to surge, and the president will be able to point to that to assert that the only “problem” at the Southwest border is getting the “refugees” there settled into their new homes in the United States (with cash and housing assistance) as quickly as possible.
That all of this will demolish the limits on immigration to the United States — which are intended to protect the wages and working conditions of American workers (both citizens and lawful immigrants) — will be lost in the din. How can you “pull up the ladder” when so many need our help? This is, after all, a “nation of immigrants” as advocates of unlimited immigration insist.
The same will be said for the new fiscal costs that this imposes on states and localities across the United States. Schools and hospitals will need more funding, police and social services will be strained, housing will become more expensive and harder to find, but what is all that in the face of the humanitarian benefit?
Will the American people buy it? Good question. A largely Biden-friendly press will do its part with humanitarian stories showing cute little moppets clinging to their mothers’ legs.
What you won’t be shown are the horrors on the other side of the border, as rapacious smugglers get rich off of the human suffering of the hundreds of thousands of new migrants the promise of a life in America will attract. Children will suffer, migrants will die, and cartels will get a new funding stream. You rarely hear about it now — why will you hear about it in the future?
A small silver lining in the new IFR, and we do mean minuscule, is that the administration is not taking as expansive a definition of parole as proposed. Under section 212(d)(5) of the INA, Congress granted DHS the authority to parole an otherwise inadmissible alien “on a case-by-case basis for urgent humanitarian reasons or significant public benefit”. This is intended to be a narrow authority, as the Biden administration seems to concede in the regulatory documents, but the NPRM sought to expand the definition to include lack of detention space. This was ripe as the administration’s budget request for fiscal year 2022 sought funding for fewer detention beds.
While the final rule takes a broader interpretation of parole, they at least dropped the lack of detention space as a basis. We surmise that DOJ attorneys did not want to defend that in court when the administration was quite literally creating the eligibility trigger by decreasing detention capacity. Now, an alien who presents “neither a security risk nor a risk of absconding” may be eligible to be paroled out of custody for any of these five reasons: (1) aliens who have serious medical conditions such that continued detention would not be appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles; (4) aliens who will be witnesses in proceedings conducted by judicial, administrative, or legislative bodies in the United States; and (5) aliens whose continued detention is not in the public interest.
The fifth prong has the potential to be the exception that swallows the rule but it is not as bad as it could have been.
The IFR is 512 pages and just posted for inspection this morning at 8:45 a.m. so more analysis from the Center’s experts will be forthcoming.