Biden Not Using the Key Tool Congress Gave Him to Control the Border

Which is why nearly seven illegal migrants are being released for every one that gets sent home

By Andrew R. Arthur on August 3, 2022

As I have noted numerous times in the past, the Biden administration — which promised on its first day to “bring transparency and truth back to government” — has a transparency problem when it comes to immigration. Consequently, you must pore over various documents to see what is happening at the border. USCIS has just released one of those documents — and it reveals that the administration is not using “expedited removal” — a key tool designed explicitly to allow DHS to control illegal entries — to address the calamity unfolding at the Southwest border.

Credible Fear Receipts and Decisions. The document in question is captioned “Semi-Monthly Credible Fear and Reasonable Fear Receipts and Decisions”, and it details the number of credible fear applications asylum officers (AOs) in USCIS have received, and whether the aliens in question received positive or negative credible fear determinations.

By way of brief background, in 1996, Congress added a new section 235(b)(1) to the Immigration and Nationality Act (INA). That “expedited removal” provision allows DHS to quickly deport “arriving aliens” (including illegal entrants) who seek admission through fraud or without proper documents, without obtaining an order of removal from an immigration judge.

If, however, an alien subject to expedited removal asks for asylum or asserts a fear of harm if removed from the United States, the alien is to be sent to an AO to determine whether the alien has a “credible fear” of return, that is, whether the alien may be eligible for asylum.

Only if the AO determines that the alien has a credible fear of return will the alien be placed into removal proceedings before an IJ; otherwise, the alien will be immediately removed.

That USCIS disclosure reveals that between July 1, 2021, and July 15, 2022, AOs at USCIS received 73,778 credible fear claims, and issued 61,461 decisions. While those numbers are not aggregated by arresting agency or region, I will give the administration the benefit of the doubt and assume that all of them were claims made by aliens encountered by CBP at the Southwest border.

Of those 61,461 claims, 39,443 (just over 64 percent) received positive credible fear determinations, meaning that those aliens were cleared to apply for asylum.

AOs also received 6,410 “reasonable fear” claims during that period. Those are fear claims made by aliens who have been previously removed from the United States, and thus are subject to reinstatement of their prior removal orders.

Of those claims, AOs issued 5,398 decisions; 1,763 (32.67 percent) were positive reasonable fear findings, clearing those aliens to apply for statutory withholding and/or protection under the Convention Against Torture.

In total, then, AOs received 80,188 credible or reasonable fear applications from aliens who had been placed into expedited removal or reinstatement proceedings, again presumably all of them illegal migrants who had been stopped by CBP at the Southwest border. Of that number, 41,206 were cleared by AOs to apply for some sort of humanitarian protection.

Southwest Border Apprehensions. During the period covered by that USCIS disclosure — July 1, 2021, to July 15, 2022 — Border Patrol agents and CBP officers at the Southwest border encountered 2.361 million illegal entrants and otherwise inadmissible aliens (mostly the former). Of that number, just over 1.142 million (48.4 percent) were expelled pursuant to orders issued by CDC under Title 42 in response to the Covid-19 pandemic. The remaining 1.219 million were processed under the INA.

Of that 1.219 million, 140,000 were unaccompanied alien children (UACs) who were not from Canada or Mexico. Under a problematic 2008 law, none of those UACs are subject to expedited removal, even if they are clearly inadmissible, do not have asylum claims, and have not been trafficked.

That leaves 1.079 million aliens who were “amenable” to expedited removal, meaning that they could have been quickly removed from the United States without being placed into formal removal proceedings. By and large, however, that did not happen.

Southwest Border Releases, Removals, and Returns. Court-ordered disclosures in Texas v. Biden, a case brought by the states of Texas and Missouri to force the Biden administration to continue the Trump-era Migrant Protection Protocols (“MPP”, better known as “Remain in Mexico”), reveal that DHS released somewhere in the neighborhood of 853,000 arriving aliens encountered by CBP at the Southwest border between July 2021 and the end of June 2022.

By comparison, during that period, Border Patrol agents and CBP officers at the Southwest border removed 39,851 aliens through expedited removal and deported an additional 22,275 aliens with reinstated removal orders.

All told, across all categories (bag and baggage, voluntary return, expedited removal, withdrawal of applications for admission, and reinstatement), CBP returned or removed 103,669 arriving aliens at the Southwest border (including illegal migrants) between July 2021 and the end of June 2022. ICE removed an additional 16,540 aliens with expedited removal orders.

An additional 5,733 — all migrants apprehended by Border Patrol — were returned to Mexico to await their hearings under the August injunction in Texas, beginning in December. That brings the 12-month total of removals and returns to just fewer than 126,000, meaning that arriving aliens encountered by CBP at the Southwest border who were not expelled under Title 42 were almost seven times more likely to be released into the United States than to be sent home.

Putting It all Together. Putting all these disparate statistics together, two points are apparent.

First, despite the popular characterization of all migrants who enter illegally at the Southwest border and are released into the United States as “asylum seekers” (by NBC News, CBS News, ABC News, AP, Politico, the New York Times, D.C. Mayor Muriel Bowser (D), and any number of other officials and outlets), most are not, at least not at the time that they were released.

Few illegal migrants who are placed into removal proceedings will have any other form of immigration relief, and thus most eventually will file asylum applications as a fallback (assuming that they appear at all), regardless of the strength or veracity of their claims.

Second, at a time when members of Congress are calling to continue Title 42 (the only effective border response DHS is utilizing at the present) indefinitely, they are apparently overlooking the fact that DHS is not currently using the tool Congress already gave it to expel illegal migrants and control the border — expedited removal.

Look at the numbers. In the 12-month period from July 2021 to July 2022, DHS only removed 56,391 of the 1.29 million aliens encountered by CBP at the Southwest border (4.3 percent), who were not expelled under Title 42, via expedited removal.

Adding in the 39,443 aliens who received positive credible fear determinations from AOs only boosts the total number of aliens processed by DHS for expedited removal up to just less than 96,000 — 7.4 percent of the aliens CBP encountered during that period who were not expelled under Title 42.

None of this makes sense. By law, every one of those migrants should have been detained until they either received some immigration relief or benefit or were removed. The Biden administration contends that it does not have space to detain them (which is only partially true), and thus must release them.

If DHS were to remove those aliens under expedited removal, however, it would not need as much detention space, and would likely deter most foreign nationals who — drawn by the administration’s own policies — are planning on entering the United States illegally. Remember — with expedited removal currently significantly underutilized, the odds are seven-to-one in their favor right now that they will be released into the United States, assuming that they aren’t expelled under Title 42.

Congress gave DHS expedited removal to enable the department to attain and maintain control of the Southwest border. As the numbers reveal, however, DHS is using expedited removal for fewer than a tenth of all the illegal migrants CBP encounters at that border. Which is likely why the border is in the shape it is.