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 delay their removals.
Migrants who qualify for an asylum claim will be admitted to the country through an orderly process and connected with resources that will help them care for themselves. Migrants who do not qualify will have the opportunity to make their claim before an immigration judge.
Here is how the current system works: Under section 235(b) of the Immigration and Nationality Act (INA), aliens who are apprehended by CBP entering illegally at the border, or without proper documents at the ports of entry, are subject to “expedited removal”, meaning that they can be quickly removed by DHS from the United States without receiving a removal order from an immigration judge (IJ).
If the alien claims, however, to have a fear of harm, or requests asylum, CBP will hand the alien over to an asylum officer (AO) from USCIS, for a “credible fear” interview. Credible fear is a screening process to assess whether the alien may have an asylum claim, and thus proving credible fear is easier than establishing eligibility for asylum.
If the alien is found by the AO to have a credible fear (and the vast majority are), the alien is placed into removal proceedings to apply for asylum before an IJ. The government is represented by an attorney from ICE, who can offer evidence that supports or contradicts the alien’s claim, and can probe for inconsistencies in the alien’s testimony.
If the alien receives a “negative credible fear” assessment from the AO, the alien can seek a “credible fear review” from an IJ. The government is represented by an attorney from ICE in those proceedings, as well. The IJ can affirm or reverse the AO, and if the IJ reverses, the alien is placed into removal proceedings to apply for asylum under the process above.
IJs are attorneys within DOJ, and that department has reported that between FY 2008 and the fourth quarter of FY 2019, 83 percent of aliens who claimed a fear of return received a “positive credible fear” assessment from AOs or IJs, but fewer than 17 percent of aliens who received a positive assessment were ultimately granted asylum (by contrast, 32.5 percent failed to appear and were ordered removed).
Under the MPI plan that is reportedly under consideration by the Biden administration, if an AO were to make a “positive credible fear” assessment, the alien’s claim would then be adjudicated not by an IJ in an “adversarial” removal proceeding (where an ICE attorney could offer evidence, make arguments, and probe for inconsistencies), but in a “non-adversarial” interview with an AO.
Note that most criminal and civil proceedings in this country are adversarial — with both parties represented by counsel or by themselves — for good reason: It works, and is the best method for determining the truth.
The MPI plan mirrors the current “affirmative asylum process”, under which an alien present in the United States (legally or otherwise) can request asylum directly from an AO. If that application is approved, the alien receives asylum and is placed on a path to citizenship. If it is denied, and the alien is removable, the AO can place the applicant into removal proceedings where he or she can renew that application.
Congress, however, established a separate process for illegal migrants and aliens who have applied for admission at the ports of entry without proper documents under section 235(b) of the INA, as set forth above. To make the change that MPI recommends and that the Biden administration is allegedly considering, therefore, would require amending the INA. Or ignoring the law.
Even before Congress created the expedited removal process in 1996, however, illegal migrants and those who did not have proper admission documents were unable to make affirmative asylum claims. They were placed into deportation or inadmissibility proceedings (respectively), and could request asylum “defensively” from an IJ.
Congress changed that law in 1996 to “expedite” the removal of arriving aliens (hence, “expedited removal”). Note that President Bill Clinton signed that bill, and that it passed the Senate on a voice vote, so then-Sen. Joe Biden (D-Del.) could have objected to it, but didn’t.
This proposal would grind expedited removal to a halt, in two ways.
First, under the MPI proposal, aliens who are denied asylum by an AO after that “nonadversarial” interview could then seek asylum from an IJ, giving illegal migrants a “second bite” at the apple. And then, if the IJ denies that application, the alien respondent can and could seek review of that decision from the Board of Immigration Appeals (BIA), as a matter of right.
Should the alien respondent’s appeal be dismissed by the BIA, he or she can file a petition for review with an application for a stay with the appropriate court of appeals.
If that petition is denied, or if the circuit court denies the alien petitioner’s appeal, he or she could request certiorari from the Supreme Court. That adds up to five “bites at the apple” (the current system only allows for four, which is still too many).
All of this means that under the MPI proposal, illegal migrants could remain in the United States for years until the legal process plays itself out (and the alien would likely never be removed, in any event).
Keep in mind that AOs will likely grant some of the asylum claims that would have otherwise ended up on IJs’ dockets, but all of the rest will go to the courts. That will both strain USCIS’s limited resources, and not significantly alleviate the burden on the IJs. If you wanted to set up a system to fail, this proposal is a good start.
Two, and although the Trump administration doubled the number of AOs and increased the number of IJs by 83 percent (as I noted in a March 24 post), there are still only 529 IJs (with a docket of 1.3 million cases) and, as per NPR, 860 AOs (handling 350,000 cases).
DHS expects a half million to 800,000 migrants — just in family units — to enter illegally in FY 2021 (which ends in September). DHS Secretary Alejandro Mayorkas has stated that CBP is “on pace to encounter more individuals on the southwest border than we have in the last 20 years” — that is, since FY 2001, when Border Patrol alone apprehended more than 1.2 million migrants at the Southwest border.
Let’s assume, on the low side, that only 10 percent of those migrants make credible fear claims. That is still an additional 120,000 cases, for 1,389 adjudicators (AOs plus IJs).
That would be an additional 86-plus cases for each, except it really would be many, many more, because most if not all of those asylum claims denied by AOs are going to go to the immigration courts.
Assume, on the high side, that AOs grant half of those asylum applications. That means that 860 AOs would have to have adjudicated 120,000 cases (139 a piece, on top of the 407 cases that they currently have — 350,000 cases divided by 860 AOs). That leaves 60,000 new cases for the 529 IJs (113 a piece), on top of the 1.3 million cases (2,457 per IJ) that they already have on their dockets.
Remember — this is a best case scenario, given the fact that fewer than 17 percent of all asylum claims made by aliens in expedited removal proceedings were granted asylum in the almost 12-year period between FY 2008 and the fourth quarter of FY 2019.
Picture a clerk walking down a hallway with a towering pile of files, and then imagine someone dumping a whole bunch more at the top. That is what the Biden administration is proposing, only it is tens of thousands of new files.
None of this is necessary. Under the expedited removal statute, every alien is supposed to be detained pending a credible fear interview, and every alien who receives a positive credible fear assessment is supposed to be detained until his or her asylum proceeding is completed.
That is the law, and was the practice until December 2009, when then-ICE Director John Morton issued a directive that aliens who had received a positive credible fear assessment should generally be released on parole under section 212(d)(5)(A) of the INA.
Asylum officers completed 5,173 credible fear cases in FY 2009, before the Morton parole directive went into effect. Those completions 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.
By FY 2019, AOs were adjudicating more than 102,000 credible fear claims, after receiving more than 105,000, as smugglers discovered and exploited the “credible fear” loophole that allowed illegal migrants to live and work in the United States indefinitely.
Rather than giving illegal migrants one more bite at the apple (as the Biden administration is considering), DHS should detain those who claim credible fear — as the law requires. The number of applicants will drop, and IJs can grant meritorious claims from truly deserving applicants much, much more quickly.