In my last post, I explained why the Biden administration’s recent initiative to facilitate the illegal entry of aliens with no right to be admitted by allowing them to schedule “interviews” with CBP officers at the ports is both illegal and a threat to national security. Flipping the script, I’ll explain how the president’s port interview scheme could nonetheless provide a template for securing the Southwest border from drugs and illegal migrants. Consider it a lesson for the next administration – or the current one.
Alien “Applicants for Admission” at the Border and the Ports
Under section 235(a) of the Immigration and Nationality Act (INA), all aliens attempting to enter the United States – both legally and illegally, and at the ports of entry and between them – are deemed “applicants for admission”.
In that section of the INA, Congress also provides DHS with specific directions on how those applicants for admission are to be processed: they must be “inspected by immigration officers” to determine whether they’re inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA.
Note that this inspection protocol is not unique to the United States. It is roughly same regime that is followed all around the world (one big benefit of membership in the European Union is the elimination of inspections between the member states’ borders), and it has been in effect in one form or another here since the 19th century.
Under the INA, those “immigration officers” are both Border Patrol agents – who apprehend illegal entrants between the ports – and CBP officers (CBPOs) within the Office of Field Operations (OFO), who inspect all travelers (including citizens) at the ports. Regardless of whether they are in Border Patrol or OFO, however, their remit is the same – keeping inadmissible aliens out of the United States.
Section 212(a)(7)(A)(i) of the INA says aliens are inadmissible if they are:
not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document . . . and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by [DHS under section 211 of the INA].
If, following that inspection mandated by Congress in section 235(a) of the INA, the “immigration officer” finds that the alien “applicant for admission” is inadmissible, the officer can either subject the alien to “expedited removal” (under section 235(b)(1) of the INA), or place the alien into “regular” removal proceedings before an immigration judge (under section 235(b)(2) of the INA).
The benefit of expedited removal is that it allows the immigration officer to quickly remove the alien from the United States without having to obtain a removal order from an immigration judge, but it comes with a catch: If the alien subject to expedited removal “indicates an intention to apply for asylum” or claims a fear of persecution, the officer must refer the alien to a USCIS asylum officer for an interview to determine whether the alien has a “credible fear of persecution”.
If the alien receives a “positive credible fear determination” from the asylum officer, the alien is almost always placed into regular removal proceedings before an immigration judge to apply for asylum.
That said, regardless of whether the alien is subjected to expedited removal or placed into regular removal proceedings, Congress has made clear in section 235(b) of the INA that the alien must be detained – from the moment of encounter until the alien is either granted asylum or some other humanitarian benefit or, alternatively, is removed.
“The CBP One App Interview Scheme”
In a January 5 White House “Fact Sheet”, the Biden administration announced that it would allow would-be illegal migrants to schedule interviews at Southwest border ports of entry “to initiate a protection claim” in lieu of crossing the border between the ports illegally.
As shorthand, I refer to that policy as the “CBP One App Interview Scheme”, and here’s how it works: All foreign nationals (either Mexican or “other than Mexican”) outside the United States are allowed to download the CBP One mobile application, which “serves as a single portal to a variety of CBP services”.
Of course, most if not all of the aliens who take advantage of this scheme are inadmissible under section 212(a)(7)(A)(i) of the INA because they lack visas or other admission documents that would allow them to be admitted to the United States, and therefore some may find it counterintuitive that they’d be allowed to schedule a port interview for a benefit (admission to the country) they clearly aren’t eligible for.
I’d concur with such assessments, but his scheme only really becomes offensive when the Biden administration describes those aliens as “seeking to enter the United States lawfully”, which it does in the January 5 White House “fact sheet”. By definition, under the inspection regime in section 235(b) of the INA, they’re not.
Plenty of government actions are counterintuitive and offensive without being problematic or a threat to our nation’s sovereignty and security. In this case, it’s only the administration’s implementation of this scheme that makes it problematic and poses a threat to our sovereignty and security.
Specifically, reports indicate that notwithstanding the detention mandates in section 235(b) of the INA, more than 99 percent of all those inadmissible applicants for admission who used the CBP One app to schedule port interviews were allowed to enter the United States, even though they have no right to do so.
Thus, the CBP One app interview scheme has turned the ports of entry at the Southwest border into little more than a pro forma exercise for the 106,000-plus illegal migrants who have utilized it since it was introduced on January 12 through the end of May.
That’s a national-security risk because CBP knows little about any of the aliens it encounters at the Southwest border, aside from the ones with U.S. criminal records and a limited population of foreign nationals with respect to whom the U.S. government possesses derogatory intelligence information.
The whole purpose of visa-processing at consulates abroad is to determine whether an applicant is inadmissible on the medical, criminal, national security, and other grounds in section 212(a) of the INA. All aliens processed under the CBP One app interview scheme, however, have deliberately bypassed that visa screening process in coming here.
The One Benefit of the CBP One App Scheme
For all its many faults (including non-compliance with the detention mandate in section 235(b)), the one benefit of Biden’s CBP One app interview scheme is that it directs would-be illegal entrants toward the ports of entry, where at least their applications for admission can be controlled and regulated.
That frees up Border Patrol agents between the ports to stop drugs, other contraband, and illegal entrants who have no interest in getting caught, the successful ones being identified in statute as “got aways”. Already in the first eight months of FY 2023, some 530,000 illegal migrants were detected but successfully evaded apprehension at the Southwest border, a tsunami that imposes unconscionable security risks.
Of course, even if the administration were detaining the CBP one applicants who are taking advantage of that scheme, it comes with its own costs, the most significant of which is that it draws OFO resources away from port inspections for drugs, contraband, and human smugglers. On balance, however, it’s better to deal with illegal migrants at the ports than between them.
Illegal Entrants and the “Rebuttable Presumption” of Asylum Ineligibility
The CBP One app interview scheme is the “carrot” in the administration’s latest “border enforcement” regime. The stick is a May 10 rule published by DHS and DOJ that imposes a “rebuttable presumption” of asylum ineligibility on illegal entrants who, bypassing that scheme, enter illegally and who have not first applied for humanitarian protection in a country they transited en route to the United States.
Not that it’s much of a stick, because as my colleague Elizabeth Jacobs has explained, the rule is chockful of loopholes, such as for illegal entrants who “experienced a serious technical difficulty in using” the app, where a “language barrier” prevented the alien from using the app, or when the alien or family member traveling with the alien experienced “exceptionally compelling circumstances”.
“Most importantly”, according to Jacobs, “the regulation allows families to circumvent application of the presumption against asylum eligibility if one family member is able to establish eligibility for withholding of removal” under section 241(b)(3) of the INA or 8 C.F.R. § 1208.16(c)(2) (a regulation that allows aliens to seek protection under the Convention Against Torture (CAT)).
Not All Border Aliens Must Be Treated the Same
Again, under section 235(b) of the INA, there is no difference when it comes to the requirements Congress has imposed on the executive branch between inadmissible aliens who are stopped by CBPOs at the ports and illegal entrants apprehended by Border Patrol agents between the ports. That said, it is permissible for the administration to offer different forms of asylum relief depending on how the alien arrived.
Section 208 of the INA governs asylum, and subparagraph (b)(2)(A) therein contains a series of “exceptions” that bar applicants from asylum eligibility, such as in the case of persecutors, terrorists, and aliens convicted of certain crimes.
Section 208(b)(2)(C) of the INA, however, grants the attorney general and DHS secretary broad authority to establish by regulation “additional limitations and conditions, consistent with [section 208], under which an alien shall be ineligible for asylum”. That provision is one of the statutory bases for the May 10 rule.
Therefore, while I may disagree with the loopholes that the Biden administration has added to that rule, it’s plainly permissible for his DHS and DOJ to limit asylum eligibility for aliens who cross the border between ports illegally.
A Better Plan
All of which brings me to a much better plan for dealing with inadmissible aliens at the Southwest border and asylum claims there.
Using the authority in section 208(b)(2)(C) of the INA, the administration – either this one or (more likely) a future one – could bar all aliens who cross the border without going through a port of entry from asylum. They would still be eligible for withholding (referenced above) – just not for much more generous asylum relief, which, unlike withholding, includes a pathway to a green card and citizenship.
I can understand those who favor not limiting asylum in this manner, but I can see the logic in arguments the other way, too. Every country in the Western Hemisphere – save Cuba and Guyana – has signed either the 1951 Refugee Convention or its 1967 Protocol, and thus third-country nationals can seek protection in any of them. They simply choose to come here.
Allowing would-be refugees to pick and choose to come to the United States, regardless of how many signatory countries they passed through to get here, ignores the fact that by acceding to those international instruments, the United States agreed only to shoulder its share of the refugee burden, not to assume it entirely (which is the administration’s current de facto policy).
Consequently, more than a few experts, including my colleague Mark Krikorian, have argued that the time has come for the United States to withdraw from those international agreements entirely, and the administration’s feckless border policies are setting up a scenario in which that will become an increasingly popular option.
Applicants Must Be Detained
For this plan to work, however, DHS must detain all Southwest border applicants for admission, both the ones coming through the ports and those who cross the border illegally between them.
The Biden administration created a situation in which few inadmissible applicants for admission – at the ports and between them – are actually coming to the United States for asylum per se so much as they are coming to take advantage of the asylum process, which when applicants aren’t detained can drag on for four years or more. That’s time they can live and work in this country.
That’s an abuse in that it exploits our nation’s humanitarian instincts and inclinations. It’s also wrong and must stop if the asylum system is to be retained.
If this plan were implemented, the number of inadmissible applicants who come to the United States seeking humanitarian protection would plummet. I know that because prior to January 2010, when the Obama administration started releasing illegal migrants subject to expedited removal who had received positive credible fear determinations instead of detaining them, less than 6 percent of such illegal migrants claimed credible fear.
In FY 2010, that jumped to 7 percent, and then to 15 percent in FY 2013, 25 percent in FY 2015, and 39 percent in FY 2016. By FY 2017, nearly half – 44 percent – of all aliens subject to expedited removal were claiming credible fear, and it can safely be assumed that smugglers have told every recent illegal migrant coming to the United States under the Biden administration to at least mouth the word “asylum” to gain entry.
Detention would require a massive infusion of resources to detain and care for those port and border migrants, but only initially; once would-be migrants realize that they won’t be released to live and work in the United States, fewer will come.
And I know that because when the Trump administration’s Migrant Protection Protocols (MPP) – better known as “Remain in Mexico” – were fully implemented by the late summer of 2019, the number of illegal applicants for admission at the Southwest border (both at the ports and between them) quickly dropped, from more than 144,000 in May to fewer than 53,000 in September (a 73 percent decline).
Under MPP, non-Mexican illegal migrants were sent back across the border to await hearings on their asylum claims, and thus, like aliens detained in DHS custody, couldn’t live and work in this country while their cases dragged on for years. Those seeking asylum had to and could wait, but those who were simply seeking to take advantage of the asylum process were out of luck.
For all its defects as implemented, the president’s CBP One port interview scheme, which allows inadmissible aliens to schedule interviews at ports of entry, provides a template for regaining control of the Southwest border. To work, however, aliens crossing illegally must be barred from receiving asylum, and all illegal migrants – at the ports and between them – must be detained. The current administration likely won’t go for it, but a future one very well might.