Biden’s Plan to Enable Everyone in the World to Apply for Asylum in the U.S.

Understanding how the border catastrophe happened, and how much worse it will become

By Andrew R. Arthur on May 11, 2022

I recently explained that the Biden administration — in a break with every previous one — no longer has a policy of deterring illegal entrants. That, coupled with the president’s policy of ignoring statutory mandates directing the detention of illegal migrants, has triggered the biggest border catastrophe in U.S. history. The scope of that catastrophe is overwhelming, but it will become much worse once the administration follows through on its plan to enable everyone in the world to apply for asylum in the United States.

The Deterrence Shift. My analysis of the Biden administration’s shift of U.S. border policy away from a deterrence strategy omitted one key piece of evidence: Statements made by DHS Secretary Alejandro Mayorkas on Fox News Sunday on May 1.

Host Bret Baier asked Mayorkas whether it is “the objective of the Biden administration to reduce, sharply reduce the total number of illegal immigrants coming across the southern border? Is that the objective?”

Mayorkas responded: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system.” I will return to that latter point in a moment, but there is no clearer evidence that deterring illegal migrants is off the table as border policy in this administration.

“Orderly, Legal Pathways for People to Obtain Relief”. Seemingly contradicting himself, however, the secretary next contended: “We are against irregular migration. We are against individuals taking a perilous journey, putting their lives in the hands of the smugglers, and trying to enter the United States between the ports of entry.”

The only way to deter “irregular migration”, however, is to deter the “irregular migrants”. And given that those migrants are coming to the United States illegally to live and work in this country indefinitely, the only way to deter them is to either detain them (as the law requires) or to send them back across the border to await their removal hearings.

That latter option was the one chosen by the Trump administration when it implemented the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”) during the “border emergency” in FY 2019. MPP worked, but the Biden administration is currently in the Supreme Court fighting an effort by the states of Texas and Missouri to force it to continue “Remain in Mexico” (which Mayorkas wants to end).

If detention is off the table, and MPP in bad odor at the Biden White House, then what is Mayorkas’ plan? The secretary told Baier that the administration wants “legislation to fix ... what everybody agrees is a broken immigration system and why we are rebuilding an immigration system that has been dismantled.”

As an aside, with due respect to the secretary (and no small measure of immodesty), I’m an immigration expert who has been doing this longer than he has, and I don’t agree that the “immigration system” is broken, except to the degree that various administrations have failed to apply the law. And of course, Mayorkas omits the fact that he has done more to dismantle that system than anyone else.

Returning to the point, however, Baier asked the secretary to name one legislative proposal Congress could pass “that would help you deport more illegal immigrants”. Controlling the border through deportation is plainly not in the administration’s plans, because Mayorkas responded: “When we talk about legislation, it is building the orderly, legal pathways for people to obtain relief under our laws.”

That was a carefully worded remark, and the casual observer would likely miss its import, so let me break it down. “Relief” is the key word because it refers to an immigration benefit granted to an alien who is removable from the United States and has no right to be here otherwise.

Under the Immigration and Nationality Act (INA), lawful immigration to the United States with a visa is the rule. Relief is the exception to that rule, but that is not how Mayorkas — speaking on behalf of the Biden administration — views it.

Baier was focusing on the border context, and the only three forms of relief that are available to illegal migrants are asylum, statutory withholding (which is like asylum, only with a higher burden of proof and fewer benefits), and protection under the Convention Against Torture (“CAT”, which bars DHS from removing an alien to a country in which the alien would be subject to torture).

Again, asylum, statutory withholding, and CAT relief are exceptions to the rule that aliens can only enter the United States legally, with visas. The availability of those forms of relief is required by international instruments to which the United States has acceded.

The Biden administration’s policy, however, is to turn our current system on its head, and to actively invite (“build orderly, legal pathways” for) foreign nationals with no visas and no right to enter this country to come here — illegally — to seek those forms of “relief”.

Expedited Removal. Why do I say that this plan “turns our current system on its head”? Aliens who have entered illegally are subject to “expedited removal” under section 235(b)(1) of the INA, meaning DHS is supposed to quickly remove them from the United States without seeking a removal order from an immigration judge.

There is an exception to the expedited removal rule for aliens who request asylum or claim that they will be subject to persecution or torture if they are removed, known as “credible fear”. Credible fear is a screening standard to assess whether an alien may be eligible for asylum, statutory withholding, or CAT; that screening is performed by an asylum officer from USCIS.

Under current law, if the asylum officer makes a positive credible fear determination, the alien is placed into removal proceedings to seek those forms of relief from an immigration judge. That won’t be current law for long because the administration has published a rule to allow asylum officers to keep relief claims made by aliens found to have credible fear and grant them asylum (the “asylum officer rule”), which is set to go into effect on May 31.

That change would be problematic enough because, as the Center has explained, allowing asylum officers to grant asylum (which places the asylee on a path to citizenship) makes it more likely that aliens will be granted asylum in error.

The Credible Fear Exception Swallows the Expedited Removal Rule. As applied by the Biden administration, however, the credible fear exception will effectively swallow the expedited removal rule by turbocharging a problem that has existed for more than a decade.

In section 235(b)(1) of the INA, Congress requires DHS to detain aliens subject to expedited removal from the time they are apprehended to the point at which they are either removed or granted “relief”.

In its October 2019 assessment of MPP, DHS explained:

The percentage of aliens subject to expedited removal who claimed a fear of return or requested asylum was once quite modest. However, over time, seeking asylum has become nearly a default tactic used by undocumented aliens to secure their release into the United States.

That’s true, but the assessment fails to explain how credible fear came to be “a default tactic used by undocumented aliens to secure their release into the United States” if aliens in expedited removal are supposed to be detained until they are granted relief or removed.

Aliens were in fact detained — and the number of aliens claiming credible fear was low — until then-ICE Director John Morton issued a directive allowing most aliens who had received a positive credible fear determination from an asylum officer to be released from custody on “parole”, in December 2009.

The DHS assessment reveals that 4 to 5 percent of aliens in expedited removal claimed credible fear between FY 2006 to FY 2009 (when detention of aliens in expedited removal who had received a positive credible fear determination was the rule). By FY 2011, the year after the Morton directive, that tripled to 15 percent, and then nearly tripled again (to 44 percent) by FY 2017.

The goal of smugglers is to move illegal migrants into the United States, and once the smugglers learned that migrants would be allowed in if they said a few “magic words”, the migrants started doing so. It was at that point that the expedited removal system started breaking.

Of the more than 1.2 million illegal migrants subject to expedited removal between FY 2013 and FY 2018, 416,000-plus (33.8 percent) claimed a fear of return. Of that latter number, nearly 310,600 (a quarter of the total migrants subject to expedited removal and nearly three quarters of those who made fear claims) received a positive credible fear determination from an asylum officer. Nearly all were released.

As of March 31, 2019, only 6.8 percent of migrants who had been subject to expedited removal between FY 2013 and FY 2018 and who had been placed into removal proceedings after receiving positive credible fear determinations had been granted the “relief” to which Mayorkas referred, while 23.2 percent had been ordered removed. The remaining 69.5 percent had pending asylum claims in cases that were taking years to complete.

Most of those asylum claims will be denied if they haven’t been in the interim. Among aliens placed into removal proceedings after a positive credible fear determination between FY 2008 and the fourth quarter of FY 2019, just 17 percent whose removal cases had been completed were granted asylum by an immigration judge.

By contrast, 32.5 percent of those case completions were in absentia orders of removal when the alien failed to appear in court, and an additional 32.5 percent were denials of asylum and orders of removal after the alien had appeared.

That is why the Trump administration implemented Remain in Mexico in FY 2019.

By then it knew that it was too late to reverse the Morton directive because it lacked detention space for tens of thousands of aliens, but it also knew that if it continued to release those aliens into the United States, hundreds of thousands of new migrants would enter illegally each year and most would be denied asylum. MPP deterred their entry by preventing their release into the United States while their (usually meritless) asylum claims were proceeding.

As noted, the Biden administration is currently in the Supreme Court to battle efforts by state plaintiffs to force it to continue MPP. Worse, however, the president is asking Congress for fewer detention beds in his FY 2023 budget request than the already insufficient number DHS received funding for in FY 2022.

The new asylum officer rule will simply make the problem worse because it requires that those asylum officers wait between 21 and 45 days after the credible fear determination to hold the interview at which they will decide whether to grant asylum (decisions they will then take weeks to issue).

If the asylum officer denies relief, those aliens will then have an opportunity for a brand-new review by an immigration judge to be held up to 135 days (or more) later. The immigration judge will then have up to 30 more days to issue a final decision.

By that point, more than 180 days will have passed, and that does not even take into account that an alien denied asylum by an asylum officer and an immigration judge can appeal to the Board of Immigration Appeals (which can add months or years to the process) as a matter of right.

Mayorkas’ Plan. The 25,000 daily detention beds that the Biden administration is requesting for FY 2023 will not even scratch the surface of the total that would be needed to detain all those aliens for a half a year or more, but that’s the point. Mayorkas does not want to detain them — he has already told Congress that DHS has “misused detention in the past”.

The secretary does plan on processing every illegal migrant encountered at the border for expedited removal as the law directs. The ones who fail to request asylum or claim a fear of return will likely be quickly removed — assuming CBP and ICE have the resources to remove them. More than 104,000 illegal migrants have been released on so-called “Notices to Report” with little or no screening at all under the Biden administration due to resource constraints.

Nearly every alien who claims a fear of harm, however, will almost definitely be released on parole before they ever receive a credible fear screening — despite the fact that section 235(b)(1)(B)(iii)(IV) of the INA is clear that: “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”

Why’s that? A lack of resources to implement the secretary’s Rube Goldberg asylum officer rule.

There were only 840 asylum officers at the end of FY 2020, the last year for which statistics are available, although the Biden administration has made a push to hire hundreds more.

Given the additional responsibilities that they will shoulder under the asylum officer rule, the sheer number of illegal migrants (up to 18,000 per day are expected once Title 42 ends), and the fact that they are also assigned to adjudicate the more than 330,000 pending affirmative asylum claims, there is no way that even 3,000 asylum officers would be able to interview every illegal migrant seeking to avoid expedited removal.

Even if those migrants are interviewed for credible fear, however, such interviews would be extremely perfunctory, and if there is any doubt, the migrants will be passed along to apply for asylum. At that point, those migrants will be released absent some proof they pose a danger to the national security or community safety, and will remain in the United States indefinitely.

Mayorkas’ asylum officer rule admits as much, explaining:

DHS views detention as not being in the public interest where, in light of available detention resources, and considered on a case-by-case basis, detention of any particular [alien] would limit the agency's ability to detain other [aliens] whose release may pose a greater risk of flight or danger to the community.

Every illegal migrant poses a risk of flight, as evidenced by their illegal entry. Do you really think they are going to start obeying U.S. immigration laws once they get here? Thus, only hardcore dangers to the community will be detained.

Mayorkas’ statements to Baier underscore the fact that the Biden administration’s policy is to allow every person in the world who wants to apply for asylum in the United States to do so, provided they can make it to the U.S. border — legally or illegally.

Mayorkas also made clear on Fox News Sunday that he views it as his job to create “orderly pathways” for them to make those applications by expediting their processing from CBP detention and into the United States where they will receive endless interviews with asylum officers, hearings before immigration judges, and appeals.

Those pathways would be only quasi-legal, however: Illegal migrants are allowed to make credible fear claims, but DHS lacks the authority to release them, and as the Center established in its comment to the proposed version of the asylum officer rule, asylum officers lack statutory authority to grant those illegal migrants asylum.

If Mayorkas truly wanted to fix the “broken” immigration system, he would rescind the Morton directive that — contrary to Congress’ mandates — allows illegal migrants claiming asylum to be released. That would deter illegal entries by aliens with weak, bogus, and frivolous claims. But that’s the opposite of what he really wants to do. You may not like millions of aliens entering illegal per year, but you better get used to it.