Biden Administration Releases Its Blueprint for Dismantling the Border

At 4:38 AM on a Saturday morning

By Andrew R. Arthur on February 1, 2022

On January 31, the Biden administration published its “Unified Agenda of Federal Regulatory and Deregulatory Actions”. The Regulatory Flexibility Act of 1981 requires the executive branch to publish such documents on a semiannual basis to lay out a brief description of any rule that it plans to promulgate in the next six months “likely to have a significant economic impact on a substantial number of small entities”. This one contains a blueprint for the president’s plan to dismantle the border.

The Document in the Pre-Dawn E-Mail. Note that, although this one was technically published on January 31, it was actually released at 4:38 AM on January 29 — a Saturday, when I received my e-mailed copy. The unified agenda runs a whopping 85 pages in the Federal Register (FR), which may not seem like much until you consider that the FR is written in print more reminiscent of the phone book than a novel.

The word “immigration” appears 120 times in that document, revealing how much of that document has to do with the subject. There are two key subjects therein that touch on the chaos at the Southwest border.

Creating a Conveyor Belt for Illegal Migrants into the United States. The first is one that the Center has written on extensively: A plan to give asylum officers primary jurisdiction over asylum applications filed by illegal migrants encountered by CBP, and to allow DHS to release tens of thousands of arriving aliens into the United States monthly on what is known as “parole”.

It would essentially create a conveyor belt to bring illegal migrants into the United States, but to explain the ramifications of that proposal, it is important to understand how border processing is supposed to work.

The Current Expedited Removal System, Congress’s Preferred Choice. DHS has two choices when it apprehends illegal migrants at the border: It can place them into “expedited removal” proceedings under section 235(b)(1) of the Immigration and Nationality Act (INA), or it can process them for regular proceedings under section 240 of the INA.

Congress prefers expedited removal because it allows DHS to remove illegal migrants without obtaining a formal order of removal from an immigration judge (IJ). That said, Congress included a loophole in the INA for aliens in expedited removal who claim a fear of harm if returned.

Those aliens are sent for an interview with asylum officers (AOs) at USCIS to determine whether they have a “credible fear of persecution”. Credible fear is a screening standard for AOs to determine whether those aliens may be eligible for asylum.

If the AO finds that the alien does have a credible fear (and between FY 2008 and the fourth quarter of FY 2019, 83 percent of those who claimed credible fear received a positive credible fear determination), they also are placed into removal proceedings to file an asylum application (Form I-589) with an IJ.

The Administration’s Proposal. That is how the system works now. Back in August, however, the administration published a notice of proposed rulemaking, where it stated its plans to allow AOs to adjudicate not just credible fear claims, but also underlying claims for asylum, too. Under this plan, if the AO denied asylum, the alien could then start the whole thing over with an IJ.

By the way, that proposed rule would also eliminate the requirement that aliens who had been subject to expedited removal file an asylum application with an AO to be considered for that protection. If an AO denied asylum, the IJ would have to adjudicate the application based on the record that the AO compiled.

Why does the Biden administration want to waive that I-589 requirement? To ensure that applicants don’t “forget” to file their asylum applications within one year of entry (which would bar those applications), and to enable them to get employment authorization to work in the United States as quickly as possible — seriously, the proposed rule states as much.

This proposal could cost close to $1 billion annually according to the unified agenda, but that document explains helpfully, “some asylum applicants may realize potential early labor earnings” because they will be able to work more quickly. Good for them, but not much help to the American workers (both citizens and lawful immigrants) those aliens will be in competition with for jobs.

Removing Key Protections in the Asylum Adjudication System. This proposal would remove many key protections in the asylum adjudication system. Under that proposal, AOs would adjudicate those applications in “non-confrontational” interviews. Under the current system, by contrast, there is an ICE attorney to cross-examine the alien, offer evidence to contradict the alien’s claim, and appeal an erroneous IJ decision, as the Center explained in its comment in response to that proposed rule.

Is the Border Asylum System Overwhelmed, or Misapplied? The unified agenda asserts that this change is necessary, however, because: “There is wide agreement that the system for dealing with asylum and related protection claims at the southwest border has long been overwhelmed and in desperate need of repair.”

The first part of that sentence is correct (the expedited removal system is overwhelmed), but the second part is in error because the administration elides a key fact: Congress intended to dissuade illegal migrants with weak or frivolous claims from exploiting the “credible fear” system by mandating that aliens in expedited removal be detained from the point at which they are apprehended until their asylum claims are adjudicated or they are ordered removed.

In fact, that mandate was enforced — and the number of aliens claiming credible fear was limited — until then-ICE Director John Morton issued a directive allowing most aliens who had received a positive credible fear determination to be released from custody on parole in December 2009.

AOs completed 5,173 credible fear cases in FY 2009, before the Morton parole directive went into effect. Those claims grew to 8,926 in FY 2010, 11,716 in FY 2011, and 13,607 in FY 2012, before increasing by almost 280 percent, to 36,454, in FY 2013. It may have taken a while for smugglers to catch on to the scam, but once they did, I trust it featured prominently in their illicit sales pitches.

By FY 2019, AOs were adjudicating more than 102,000 credible fear claims (they received 105,000-plus that year but couldn’t keep up) as smugglers discovered and exploited the “credible fear” loophole that allowed illegal migrants to live and work in the United States indefinitely.

Curiously, the Trump administration never rescinded the 2009 Morton directive, even though it directly contravenes the law. That said, by the time that he took office, there were too many aliens in expedited removal to detain them all.

It would make much more sense (and be a lot cheaper) if instead of loosening the credible fear/asylum process as the Biden administration proposes, it simply detained those illegal migrants as Congress has directed. The fact that it isn’t doing so suggests that there is more to this proposal than simply “fixing” an “overwhelmed” system.

Releasing Illegal Migrants on Parole. That brings me to parole. Congress has long provided the executive branch with the authority to allow inadmissible aliens to enter the United States, but the legislative branch intended that this authority be used sparingly.

That authority is contained in section 212(d)(5)(A) of the INA and allows DHS to parole aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit “. Urgent humanitarian reasons are usually limited to medical exigencies and significant public benefit to cases like ones in which the alien is needed to testify in a criminal case.

The Morton directive drove a hole through those limits, but the administration wants to expand it much further, to any situation where “detention is unavailable or impracticable”. Given the fact that Biden is asking Congress to cut funding for DHS detention in his FY 2022 budget request, the president wants to have it both ways, by creating a perfect storm of increased illegal immigration and decreased detention.

Biden Plan to Expand Asylum Eligibility Beyond Recognized Limits. Making this proposal even worse is a threatened expansion of asylum, which the unified agenda describes.

To be granted asylum, an alien must either show past persecution or a well-founded fear of future persecution on account of one of five factors: “race, religion, nationality, membership in a particular social group, or political opinion”. Crime, corruption, and poverty don’t count without more.

Four of those factors (race, religion, nationality, and political opinion) are more or less self-limiting. For example, an alien is a Chinese national or isn’t.

As then-Judge (now Justice) Samuel Alito explained in a 1993 decision, however, "Read in its broadest literal sense, the phrase [membership in a particular social group] is almost completely open-ended. Virtually any set including more than one person could be described as a 'particular social group.'"

Despite the potential expansiveness of the particular social group definition, courts have managed to place reasonable limits on which groups count. As the unified agenda explains, however, the Biden administration will be issuing regulatory “guidance” that “will aid in the adjudication of claims made by applicants whose claims fall outside of the rubric of the protected grounds of race, religion, nationality, or political opinion.”

The proposal (which has not yet been released, and which therefore has no price tag) will expand the “particular social group” definition, along the parameters outlined by Biden in a February 2021 executive order. The only question is how wide that expansion will be.

Unlimited Immigration and a Further Deterioration of Border Security. Taken in tandem, these proposals will ensure not only unlimited immigration, but also a continuation — and deterioration — of the national-security and humanitarian disaster at the Southwest border. If you think that nearly two million Border Patrol apprehensions in a single year at the Southwest border was bad, just wait until these plans are revved-up and ready to go.

Once more, however, there is a “worse”, and in this instance that worse relates to the fact that Congress has set careful limits on immigration, largely to protect the wages and working conditions of American workers, and to protect the public fisc from uncontrollable social welfare and other public costs.

These proposals would wipe away those limits, allowing the administration to funnel virtually every alien who can make it to the Southwest border into the United States, and by granting them asylum, placing the vast majority on a path to citizenship.

If your property taxes are increasing, your kid’s school is overcrowded, and you have had to wait hours to be seen in your local emergency room, just wait.

The Administration Is Projecting Its Own Dismantling of the Border on Trump. In a recent interview with Reuters, DHS Secretary Alejandro Mayorkas asserted: “In this first year, we have been dedicated to rebuilding an immigration system that was dismantled, virtually in its entirety, by the prior administration”. It was a puzzling statement for which Mayorkas offered no support, but one that he has made often in the past.

As it turns out, Mayorkas appears to be engaging what in psychological terms is known as “projection”, that is, “the mental process by which people attribute to others what is in their own minds”. There are plainly moves afoot to dismantle the immigration system at the Southwest border, and the Biden administration laid them out in a document sent by e-mail at 4:38 AM on a Saturday morning.