Biden Is Destroying the Immigration Courts

A possible solution by going back to the past

By Andrew R. Arthur on April 12, 2023

In a March 28 post, I explained that Canadian Prime Minister Justin Trudeau recently forced the Biden administration to amend the 18-year-old “Canada-U.S. Safe Third Country Agreement” (STCA) to protect Canada’s well-calibrated asylum system from third-country migrants pouring over the border via the United States. The Biden administration has no such concerns about the U.S. asylum system — and it’s destroying our immigration courts. Reinvigorating the old “special inquiry officer” process may fix the mess Biden has wrought.

The STCA and Canada’s Asylum System. As the Council on Foreign Affairs has noted:

Canada’s geography — bordered by three oceans and the United States, which is itself a magnet for immigrants — has helped Ottawa limit flows of undocumented people. Its highly regulated immigration system, including some of the world’s strictest visitor-visa requirements, is designed to further curb this phenomenon.

On paper, at least, the United States has a “highly regulated immigration system”, too. But more than two years into the current administration, that system is, like movie mogul Samuel Goldwyn’s description of an oral contract, “not worth the paper it’s written on”.

That said, the STCA is key to the orderliness of the Canadian immigration system. As originally written, it barred asylum claims by third-country nationals who arrived at Canada’s ports of entry from this country (subject to family exceptions) unless they first applied for and were denied asylum here (and vice versa).

Given Canada’s “strict visitor-visa requirements”, however, nearly all the benefits of the STCA have accrued to Canada. I say “nearly all” because, as my colleague Todd Bensman has explained at length, His Majesty’s realm to the north began allowing visa-free travel to Canada for Mexican nationals in 2016, boosting the number of them both overstaying in Canada and headed to the United States.

Under the STCA as amended by Trudeau and Biden effective March 25, however, illegal entrants to either country are now barred from applying for asylum in their illicit destination in the other, not just the ones who show up at the ports.

Thus, third-country migrants released by the Biden administration at the Southwest border can no longer flood into Canada seeking the generous benefits that country offers to asylum seekers, as 40,000 did last year at just one “unofficial” (read: “illegal”) crossing point between New York State and Quebec.

Part of the reason that Trudeau strong-armed Biden into amending the STCA to cover illegal migrants, too, is fiscal and uniquely political.

The province of Quebec was on the hook for the generous benefits Canada offers to “asylum seekers”, and its premier — François Legault — wasn’t happy. As CBC News reported, the premier “claimed that the influx of people waiting to have their claims heard has put heavy pressure on the province's public services”.

Keeping Canada’s only francophone province from seceding has been a challenge for decades, and although Trudeau’s riding (electoral district) is Papineau in Montreal, Legault (head of the center-right Coalition Avenir Québec (CAQ) party) wasn’t interested in cutting Quebec’s favorite son any slack.

A closely related reason for the amendment to the STCA, however, has to do with Trudeau’s interest in preserving his country’s asylum system.

Although our northern neighbor prides itself on its humanitarian beneficence, it understands the limits of its capacity to adjudicate asylum applications and assimilate new arrivals.

Curiously, so do at least some in its immigrant advocacy community. As The Guardian reported on March 22, in connection with the migrant surge there:

“Asylum seekers on our borders is not something that Canada typically deals with,” said Abdulla Daoud, executive director of the Refugee Centre in Montreal. “This is in many ways a new issue. And while there’s been an uptick, there’s no denying that, we’ve seen that Canada’s immigration infrastructure can handle an increase in population — but the asylum system wasn’t ever built to accommodate this sort of issue.”

The U.S. population is more than 8 times as large as Canada’s, and as of the end of December 2022, the Canadian government had a backlog of 70,223 pending asylum claims. By comparison, there were nearly 1.566 million asylum claims pending in the United States at that time — 22 times as many claims in a country with eight times the population.

The U.S. Asylum System and Border Migrants. Trudeau understands the limits on his country’s ability to process asylum-seeking border migrants. Joe Biden, on the other hand, acts as if there are no such limitations on the U.S. asylum system or on the capacity of this country to accommodate millions of newcomers.

Aliens who enter the United States illegally are subject to expedited removal under section 235(b)(1) of the Immigration and Nationality Act (INA), meaning CBP can quickly remove them from the country without seeking an order of removal from an immigration judge.

One exception to that quick removal process, however, involves aliens who request asylum or assert a fear of harm if returned. Under that provision in the INA, CBP must refer such aliens to a USCIS asylum officer to determine whether they have a “credible fear” of return.

Credible fear is a screening standard, and as such the migrant’s burden of proof is low: “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.

Because the standard is so low, between FY 2008 and the fourth quarter of FY 2019, 81 percent of migrants subject to expedited removal who claimed a fear of return received “positive credible fear determinations” from asylum officers, although just 14 percent were ultimately granted asylum.

Until recently, all aliens who received positive credible fear determinations were placed into removal proceedings before immigration judges to apply for asylum.

In May, the Biden administration amended the credible fear regulations to enable asylum officers to adjudicate those aliens’ actual asylum claims, as well. Just 383 cases in 2022, however, were referred to asylum officers for such “Asylum Merits Interviews” (AMIs) and, thus, most aliens subject to expedited removal who received positive credible fear determinations were sent to immigration court.

That said, the Biden administration has been loath to use expedited removal at all. Of the almost 563,000 illegal migrants apprehended by Border Patrol at the Southwest border who weren’t expelled under Title 42 in FY 2023, fewer than 52,000 — just over 9 percent — were subject to expedited removal.

Destroying the Courts. The rest were processed for removal proceedings before immigration judges under the INA, and consequently, the backlog of asylum applications pending before immigration judges has soared.

In FY 2022, nearly 254,000 new asylum claims were filed in the nation’s immigration courts (a yearly record), and through the first three months of FY 2023, more than 93,000 more asylum claims were added — meaning courts are on track to receive nearly 375,000 new asylum claims this fiscal year.

As of December 2022, just short of 750,000 asylum claims were pending before U.S. immigration courts. That’s a huge problem because — all told — there are fewer than 660 immigration judges to hear those claims, meaning each judge would be responsible for more than 1,135 asylum claims, even if illegal migration ended tomorrow (it won’t).

It’s actually worse than that, because the Biden administration has been actively hiding the true scope of the backlog. Some 588,000 illegal migrants who were apprehended at the Southwest border since February 2021 have been released, but haven’t actually been placed into removal proceedings yet, and it may be a decade or more before they appear on immigration judges’ dockets.

Nor are asylum claims the only cases that immigration judges must consider. As of December 2022, there were — get ready — more than 1.874 million pending cases of all kinds before those fewer than 660 judges, an average of more than 2,844 cases per judge.

During the eight years I served as an immigration judge, I completed around 13,500 cases — 1,687.5 cases per year, on average. That said, I was in a detained court, where both parties — the government and the alien respondents — were interested in getting the cases done as quickly as possible.

The vast majority of those 1.874 million-plus cases involve non-detained respondents, and hardly any want a final decision anytime soon. The longer their cases drag out, the more time they can live and work in the United States. Only non-detained aliens with valid asylum claims want to get to a decision quickly, but as the above statistics show, few border asylum claims are valid.

Three times in the last five years (April 2018, January 2020, and January 2022), I have testified before Congress on the state of the immigration courts, and each time a representative of the National Association of Immigration Judges (“NAIJ” — the judges’ union) appeared on the panel with me.

At each hearing, the NAIJ representative pushed creation of an Article I immigration court independent of DOJ (the courts are currently within the Executive Office for Immigration Review, “EOIR”, a DOJ component) as a solution to various issues that the courts were facing, including massive backlogs and long delays to reach decisions.

Those arguments made little sense to me then, and now make even less. Adding an independent gloss to the courts will bring them to a crushing halt given the ongoing border disaster, but the current system simply seems to be forestalling that inevitability anyway.

The immigration courts — which have long struggled to complete cases in a timely manner (GAO issued a report in June 2017 complaining about the backlog, when there were “only” just less than a third of today’s pending cases before half as many judges) — are being crushed into dust by the administration’s Southwest border “catch and release” policies.

A Possible Solution. The only solution to this burgeoning backlog problem — aside from a massive amnesty that’s highly unlikely to pass anytime soon or a border enforcement protocol Biden has thus far refused to adopt — is to create less formality in the removal adjudication process, not more, as an independent Article I immigration court would.

Prior to 1983, when President Reagan’s first attorney general, William French Smith, created EOIR and the current immigration courts and Board of Immigration Appeals, immigration judges were employees of the then-Immigration and Naturalization Service (INS) — the precursor to CBP, ICE, and USCIS — and had been since the INA was first promulgated in 1952 (when they were called “special inquiry officers”).

As section 101(b)(4) of the INA (1952) explained:

The term "special inquiry officer" means any immigration officer who the Attorney General deems specially qualified to conduct specified classes of proceedings, in whole or in part, required by this Act to be conducted by or before a special inquiry officer and who is designated and selected by the Attorney General, individually or by regulation, to conduct such proceedings.

The whole process was so informal that section 242(b) of the 1952 INA had to explain: “No special inquiry officer shall conduct a proceeding in any case under this section in which he shall have participated in investigative functions or in which he shall have participated (except as provided in this subsection) in prosecuting functions.”

That process worked perfectly fine for 29 years, and I will note that when the asylum provisions in section 208 were added to the INA in 1980, INS special inquiry officers cum immigration judges (the title was adopted in 1973 in a regulatory amendment that allowed the terms to be used interchangeably) could adjudicate such applications.

Granted, going back to the special inquiry officer scheme would require more than a few statutory amendments (Congress took the immigration court regulation and ran with it), but there’s no way that it would not work more smoothly than the current model, and more quickly.

This is not to say that the administration’s AMI proposal is a good one. When adjudicating an asylum application, the asylum officer only hears one side of the story — the alien applicant’s — and any parent knows that hearing both sides of any story is critical to gleaning the truth.

But a less formal process that focused on reaching the right decision in a timely manner would be a benefit, and that’s more or less what the special inquiry officer model provided.

Note that there is more recent precedent for such a proposal. Legislation implementing the Convention Against Torture (CAT) was passed in October 1998, and until regulations were adopted four months later giving immigration judges jurisdiction over CAT claims, INS officers — not immigration judges — withheld removal under CAT. Nothing suggests that they failed to do so diligently.

There is nothing inherently wrong with the immigration court system that has been in place since 1983. For that system to work, however, the executive branch must limit the number of asylum-seeking migrants entering illegally. That’s not happening, and it’s destroying the courts.

Canada has taken steps to limit migrant entries (by twisting Biden’s arm), but until the current administration follows suit, no proposal to adjudicate asylum applications expeditiously in a manner that protects the rights of both the applicants and the American people should be off the table.