Biden’s Curiously Timed Effort to Bar Asylum to Terrorist and Criminal Migrants

Could recent incursions by aliens at U.S. military bases be playing a role?

By Andrew R. Arthur on May 14, 2024

The Biden administration published a proposed rule yesterday that would allow asylum officers (AOs) to consider criminal and national-security bars to asylum during credible-fear interviews of illegal migrants. That’s curious given that the administration previously reversed a Trump-era rule that would have done the same thing. It's also curiously timed given that it was issued just over a week after a little-reported incident in which “a Jordanian foreign national who recently crossed the southern border into the U.S.” and an individual “on the U.S. terrorist watch list” tried to sneak onto Marine Corps Base Quantico in the dead of night. 

“Expedited Removal” and “Credible Fear”, in Brief. Under section 235(b)(1) of the Immigration and Nationality Act (INA), aliens encountered by CBP at the border or ports without documents to enter the United States or with fraudulent entry documents — including illegal migrants — are subject to “expedited removal”. That process allows DHS to remove such aliens without placing them into removal proceedings and obtaining a removal order from an immigration judge (IJ).

There is, however, an exception to expedited removal for aliens who request asylum or claim a fear of harm if returned home. Those aliens must be interviewed by asylum officers (AOs) from USCIS, to assess whether their claim of fear is credible. “Credible fear” is a screening standard used to determine whether the alien may be eligible for asylum.

If an alien receives a “positive credible fear determination”, the alien is generally placed into removal proceedings before an IJ to apply for asylum. If instead the alien receives a “negative credible fear determination”, the alien can seek a “credible fear review” from an IJ or accept removal.

The Bars to Asylum. The asylum statute, section 208 of the INA, is written in an unusual manner. 

On the one hand, section 208(a) permits “any alien . . . physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival. . .)” to apply for asylum. That’s why you’ll hear proponents claim aliens have a “right” to seek asylum here. 

On the other hand, section 208(b) of the INA bars IJs and AOs from granting asylum to certain alien persecutors and criminals, to alien terrorists and spies who pose a national-security risk to the United States, and to aliens “firmly resettled in another country prior to arriving in the United States”. 

Sure, those aliens can apply for asylum — but they can’t ever be granted it. 

Trump-Era Reforms, and Biden’s Initial Response. Prior to the Trump administration, however, AOs weren’t allowed to consider those bars to asylum during the credible-fear process. In other words, Osama Bin Laden could have showed up at the border and claimed (likely credibly) that he’d be persecuted if returned to Saudi Arabia, and the AO would not be allowed to even consider the role he played in multiple attacks on the United States in issuing a positive credible-fear determination. 

In two separate regulatory changes in 2020, known colloquially as the “Global Asylum Rule” and the “Global Asylum NPRM”, the Trump administration attempted to require AOs to consider those section 208(b) bars during the credible-fear interview process. 

In a subsequent March 2022 regulatory change known “Asylum Processing IFR”, however, the Biden administration again told AOs not to consider the asylum bars during credible fear interviews, explaining:

Requiring asylum officers to broadly apply mandatory bars during credible fear screenings would have made these screenings less efficient, undermining congressional intent that the expedited removal process be truly expeditious, and would further limit DHS's ability to use expedited removal to an extent that is operationally advantageous.

Requiring asylum officers to broadly apply the mandatory bars at credible fear screening would increase credible fear interview and decision times because asylum officers would be expected to devote time to eliciting testimony, conducting analysis, and making decisions about all applicable bars. 

At this point, it’d be fair to point out that Biden’s DHS has largely ditched that critical expedited removal tool Congress gave DHS to quickly remove illegal migrants from the United States. 

Of the 137,000-plus illegal entrants apprehended by Border Patrol agents at the Southwest border in March, for example, fewer than 25,500 of them—18.5 percent of the total—were subject to expedited removal. Worse, of the nearly 45,000 aliens stopped at the Southwest border ports that month, just 997 of them (2.2 percent) were placed into expedited removal.

That Was Then, This Is Now. The administration, however, has apparently had an epiphany on the efficacy of allowing AOs to consider at least some of those asylum bars during the credible-fear process, which brings me to the latest DHS publication, captioned “Application of Certain Mandatory Bars in Fear Screenings”.

Unlike the Trump-era changes, it does not require AOs to consider bars, but it does permit them to do so. And, unlike the Trump proposals, the only bars AOs may consider are the ones that relate to persecutors, criminals, and alien terrorists and other national-security risks.

In fact, the rule specifically tells AOs to place aliens who would be barred from receiving asylum because they were firmly resettled elsewhere before coming to the United States—as well as aliens who could be returned to Canada under the safe-third country agreement that we have with that country—into proceedings for further consideration of their asylum claims, assuming the other bars do not apply. 

In explaining this change of heart, that document explains:

As the purpose of the [credible fer] screening process is to identify individuals who are ineligible for relief at the earliest stage possible in order to create systematic efficiencies while simultaneously protecting legal rights, ignoring statutory bars to such relief with serious implications, including terrorism and significant criminality, during this process runs counter to the policy goals. 

That was as true in March 2022, as it is today, which suggests that something must have happened to prod Biden’s DHS in a new direction. Regrettably, we have no idea what that was. 

“What Did DHS Do with the 169 Border Aliens on Terror Watchlist Nabbed in FY 2023?” One clue as to why the administration is considering this shift may be found in a December post I wrote captioned “What Did DHS Do with the 169 Border Aliens on Terror Watchlist Nabbed in FY 2023? Possibly nothing—the continuing implications of the October 2004 ‘Ridge Memo’”.

As I explained therein, shortly after DHS was established, the department’s first secretary, Tom Ridge, issued a memo directed to, among others, the heads of CBP and USCIS, captioned “Department of Homeland Security Guidelines for the Use of Classified Information in Immigration Proceedings”. 

In that memo, Ridge warned: “While the Act and regulations allow for the use of classified information, the Secretary of the Department has determined, in his discretion, that the Department will use classified information only as a last resort.” 

If, as it has been under Biden, DHS’s key concern is ensuring illegal migrants receive due process rights over and above the ones Congress has provided (and the Constitution requires), the Ridge memo is a sure way to achieve that goal. If, however, DHS is at least equally concerned about protecting the homeland, that extra-statutory restriction will be a serious impediment. 

Let me explain. The number of illegal entrants apprehended by Border Patrol who are on the terrorist watchlist has ballooned under the Biden administration, going from 11 total in the four fiscal years between FY 2017 and FY 2020 to 15 in FY 2021, 98 in FY 2022, and 169 in FY 2023. In the first half of FY 2024, 75 illegal Southwest border migrants on the list were apprehended. 

It’s likely if not probable that the U.S. government has derogatory classified evidence against each of those aliens; the problem is that using such evidence under the restrictions in the Ridge memo would next to impossible, meaning bad people would be able to enter. 

If the Biden administration were to now allow AOs to use classified evidence in the credible fear process, this rule would tacitly protect that evidence from disclosure (AOs don’t have to share what they have with applicants), but only assuming that the aliens themselves don’t request IJ review. 

If those aliens do request review, all bets are off, and ICE may have to trust the reviewing IJ to read between the lines of AO determinations or try to offer the court that evidence.

Plainly, with an election less than six months away, the administration wants to avoid an “October Surprise” involving a terrorist attack along the lines of September 11th carried out by an illegal migrant who passed credible fear and was released into the United States. 

“Driver’s Attempt at Breaching Quantico Gate”. While that all might explain why the Biden administration would propose such a shift, it doesn’t explain why the administration has decided to push this rule now after ignoring these threats for three-plus years. Which brings me to a little-noticed article in a local Northern Virginia paper.

That article is headlined “Exclusive: Driver’s Attempt at Breaching Quantico Gate Echoes Deadly Incidents at White House, U.S. Military Bases”, and it appeared on May 10 in the Potomac Local News, a journal “founded in 2010 with one mission — to help people understand what is happening in their communities in Northern Virginia”. (My colleague Todd Bensman has also written about this.)

According to that article, two men appeared at the main gate for Marine Corps Base Quantico early on the morning of Friday, May 3, and “told guards that they were contractors for Amazon and were making a delivery to Quantico Town’s post office”—which is “located inside the military base”. 

Quantico is a massive facility, and unlike other Marine bases like Camp Lejeune (in North Carolina) and Camp Pendleton (between San Diego and Los Angeles), it’s in close proximity to the White House and the U.S. Capitol. If you wanted to strike at the heart of the Corps, Quantico is where you would aim.

There weren’t just random late-night Amazon deliverymen, however, according to the article:

The men did not provide any approved access credentials, and police determined the vehicle had no affiliation with the base, so officers directed the truck to a holding area for standard vetting procedures. “One of the military police officers noticed the driver, ignoring the direct instructions of the officers, continued to move the vehicle past the holding area and attempted to access…Quantico,” said base spokesman Capt. Micheal Curtis. 

Officers then used vehicle denial barriers, or roadblocks that were used to keep out cars, which prevented the two men from traveling further onto the base. The occupants were detained and eventually turned over to ICE, and no one was injured, said Curtis.

Multiple sources report one of the individuals inside the truck is a Jordanian foreign national who recently crossed the southern border into the U.S., and that one of the occupants is on the U.S. terrorist watch list. Quantico did not confirm this information. [Emphasis added.]

It’s unclear whether the Jordanian national was also the watchlist alien, or if they were two separate people, but regardless nothing about that account sounds good. 

As the article notes, this is just one of several recent accounts of individuals who have attempted to breach secure areas. 

In one of those incidents, on March 27, a Chinese national—allegedly here illegally—tried to enter the Marine Corps Air Ground Combat Center in Twentynine Palms, Calif.—which is literally in the middle of nowhere—despite being stopped at the gate. As the Marine Corps Times noted in its reporting on this attempted breach, “Chinese nationals have gained access to military bases and other sensitive facilities in the United States around 100 times in recent years”—which is quite the coincidence.

“The System Was Blinking Red”. Speaking of September 11th, in its final report, the 9/11 Commission convened to investigate those attacks included a chapter captioned “The System Was Blinking Red”. It begins: “As 2001 began, counterterrorism officials were receiving frequent but fragmentary reports about threats. Indeed, there appeared to be possible threats almost everywhere the United States had interests—including at home.”

Assuming any of the facts in the Potomac Local News article are correct—and there’s no reason to think they all aren’t—they should set off some sort of alarm at DHS. Couple that with the other recent incidents and you start to have “fragmentary” but systemic threats of the sort the commission described.

That’s especially true given that DHS’s own “Homeland Threat Assessment 2024”—issued last fall—warns:

Record numbers of migrants traveling from a growing number of countries have been encountered at our borders this fiscal year . . . Terrorists and criminal actors may exploit the elevated flow and increasingly complex security environment to enter the United States. [Emphasis added.]

If you examine the proposed rule closely, you can see how the Biden administration has been dealing with the terrorists and criminals it has encountered at the border up to now. Consider the following:

For those noncitizens in whose cases a negative [credible fear] determination is made due to applicability of a bar, the regulation would prevent them from entering a potentially years-long immigration court process and would conserve those DHS and EOIR resources that would have been required to complete such process to focus on meritorious cases.

According to DOJ, the median completion time for IJ removal hearings involving detained aliens is 47 days. Illegal migrants subject to the criminal and terrorist bars to asylum would only face “a potentially years-long immigration court process” if the administration were ignoring the statutory mandates that require them to be detained and was instead releasing them—which is what Biden’s DHS has apparently been doing up to now.

One last thing. The rule states that the “population to which” it will apply is likely to be relatively small, as informed by the number of cases with bars that are flagged by USCIS during screenings. If that’s true, then why did DHS bother publishing a 15-page rule that runs more than 17,000 words to announce it? Likely because the threat is real, and this time at least the administration wants to win in court. 

DHS doesn’t need this rule change to protect the homeland by keeping dangerous migrants out—all it must do is to detain them, which the law requires. That said, for Biden’s DHS to take the uncharacteristic step of barring asylum claims by illegal migrants who pose terrorist or serious criminal risks now, it must know something it’s not telling the rest of us.