In an August 18 post, I explained that the Biden administration is proposing to implement a poorly thought-out plan from the Migration Policy Institute to give asylum officers (AOs) in USCIS power to adjudicate illegal migrants’ asylum claims — authority they don’t have now. Reviewing other Biden administration documents leads to the conclusion that it’s just the first step in placing every migrant who crosses the Southwest border illegally on a five-year path to citizenship.
The various parts are in motion and complicated, and the process is arcane, so some explanation is in order.
First, here’s how the current system works: Under section 235(b) of the Immigration and Nationality Act (INA), aliens apprehended by CBP entering illegally at the border, or without proper documents at the ports of entry, are subject to “expedited removal”. That means they can be quickly removed by DHS from the United States without receiving a removal order from an immigration judge (IJ).
If an alien in expedited removal claims a fear of harm or asks for asylum, however, CBP must hand the alien over to an AO for a “credible fear” interview. Credible fear is a screening process to assess whether the alien may have an asylum claim, and the credible-fear standard is lower than the asylum standard.
If the alien receives a “positive credible fear” assessment from the AO (and the vast majority do), the alien is placed into removal proceedings to apply for asylum before an IJ.
The American people are represented in those proceedings by an ICE attorney, who can offer evidence that supports or contradicts the alien’s claim and can probe for inconsistencies in the alien’s testimony. The ICE lawyer can also appeal an IJ’s decision to the Board of Immigration Appeals (BIA).
Even if the alien receives a “negative credible fear assessment” from the AO, the alien can still ask an IJ to review that decision and reverse it. About 22 percent of those claimants successfully get negative AO credible fear determinations reversed, and they too are placed into removal proceedings to apply for asylum.
Those AOs do not enjoy the independence that IJs have in issuing their decisions — an important fact when considering the Biden plan.
To explain that point, it is important to understand that AOs do currently have the power to grant what is called “affirmative asylum” to aliens who are physically present in the United States (as opposed to in CBP or ICE custody at the border) and not in removal proceedings.
An alien begins that process by filing an asylum application with USCIS. After fingerprinting and background checks, the alien presents his or her claim at what is termed a “non-adversarial interview” with the AO.
There is a 48-page “training module” that has been prepared for AOs on how to conduct those interviews, which show how truly “non-adversarial” they are. Here’s an example:
Interviewees may shape their opinion of the U.S. Government based on their interactions with you. While you may not remember every person you interview, this interview may be a pivotal point in an interviewee’s life, and he or she will likely remember you and his or her impression of you and the U.S. Government for years to come.
When I was an IJ myself, I worked diligently to treat the parties in my court — alien respondents, witnesses, and ICE counsel — with courtesy and respect. And, yes, I was a representative of the attorney general (AG) and the U.S. government, and thus the face of the United States to all who were there, and I wanted that face to be a good one.
But I never confused my role with that of the local chamber of commerce or “welcome wagon”. Making decisions about the lives of alien respondents is difficult, testimony can include harrowing disclosures, and applying the law often means giving an objectively good person bad news.
Whether the United States or I was loved or hated at the end of the process was not as important as whether my decision was correct.
Note also that courts are adversarial venues, with both sides (the alien and ICE) offering evidence and arguments, for a reason: Hundreds of years of common law have shown that the adversarial process is the best way for courts to uncover the truth, and ideally achieve justice. But AO interviews are deliberately not adversarial.
Nor does the AO necessarily have the final word. As USCIS itself explains: “A supervisory asylum officer reviews the asylum officer’s decision to ensure it is consistent with the law. Depending on the case, the supervisory asylum officer may refer the decision to asylum division staff at USCIS headquarters for additional review.”
That may sound like it protects the system, but as I will explain, it probably won’t if Biden’s plans come to fruition.
But first let me clarify that IJs labor under no such supervisory review process. Unless and until one of the parties — again either ICE or the alien respondent in immigration court — appeals their decisions, they are final. That means that while the AG sets the policy, it’s still up to the IJ to interpret and apply the law.
IJs draw upon decades of precedent in drafting their decisions, not just the latest pronouncements from DHS or DOJ, and their decisions can sometimes lead to substantive changes in the law itself. Take, for example, AG Jeff Session’s June 2018 decision in Matter of A-B-, likely the most important asylum decision to come out of the Trump administration.
The respondent in Matter of A-B- had been in removal proceedings for almost four years. She claimed eligibility for asylum as a “member of a protected social group” due to domestic violence that she had suffered in El Salvador. The IJ denied her claim, finding (among other things) that the particular social group she identified did not qualify under the law.
The respondent appealed, and the BIA reversed the IJ and remanded the case to him. It held that the IJ should have relied on its precedent in Matter of A-R-C-G-, which also involved an asylum claim by a Guatemalan national who had alleged that she also suffered domestic violence. A-R-C-G-‘s case, though, involved important concessions from ICE that weren’t present in A-B-‘s case.
The IJ again denied asylum, distinguishing Matter of A-R-C-G- and citing intervening circuit court precedent, and sent the case back to the BIA. Thereafter, Sessions took the case on certification and issued his decision clarifying the law.
Throughout that entire adversarial process, there was an ICE attorney who was (almost definitely) arguing for the distinctions between A-B-‘s case and Matter of A-R-C-G-.
During the USCIS affirmative asylum supervisory review process, there is no adverse ICE attorney arguing either for or against the AO’s decision. In fact, as noted, career bureaucrats at USCIS headquarters can make the final call, allowing the Biden administration to ensure conformity with its policies in AO affirmative asylum grants.
That “affirmative asylum process” (which as noted is not available to migrants apprehended entering illegally now) is what the president wants to graft onto the current credible fear process at the border. Because it is a non-adversarial process, border asylum grants would soar, and the immigration-court safeguards that are in place to protect the U.S. asylum system would be gone.
The alien’s attorney will get a say, but you, as part of the American people, won’t even get a lawyer.
Of course, that does not even factor in the additional review rights that the Biden administration proposes to grant aliens entering illegally. Under its plan, illegal migrants who have been denied asylum by AOs can still have their decisions reviewed by IJs, then the BIA, then on petitions for review by the circuit courts, and then on petitions for writ of certiorari to the Supreme Court.
If you include the supervisory asylum officer and USCIS headquarters reviews, that means that aliens will have six chances to have an AO asylum denial reconsidered, three more than they have now in immigration court. As a practical consequence, even if they are never granted asylum, their individual cases will grind to a halt.
Those aliens who are granted asylum will be placed on a five-year track to citizenship. Under section 209(b) of the INA, aliens can apply for green cards one year after they are granted asylum, and by regulation grants are backdated one year from the date they are approved. So five years after the date on their green cards (four years after actually being approved for permanent residence), they can apply for U.S. citizenship under section 316 of the INA.
That means that all those migrants quickly granted asylum by AOs under the Biden administration’s plan will be on a five-year path to citizenship, and the ability to immigrate their extended family members to the United States. Consequently, hundreds of thousands, if not millions, of new immigrants will be able to take advantage of others’ illegal entry to live here permanently.
But the Biden plan could — and likely will — get much, much worse, because the Biden administration has signaled that it also wants to significantly expand asylum eligibility.
In Executive Order (EO) 14010, “Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border”, issued on February 2, the president promised to “strengthen our own asylum system”, including by rolling back asylum eligibility rules that were imposed by the Trump administration.
That EO also directed DHS and DOJ to promulgate new regulations “addressing the circumstances in which a person should be considered a member of a ‘particular social group’” by October 30. Notably, that is 11 days after the comment period ends for the proposed regulation allowing AOs to grant asylum in expedited removal proceedings.
As I explained in my analysis of that EO, not every harm inflicted or feared on an individual abroad constitutes “persecution” qualifying that person for asylum protection. Rather, only harm inflicted on account of the alien’s race, religion, nationality, membership in a particular social group, or political opinion counts.
Four of the five factors are self-explanatory, but what constitutes a "particular social group" is not. As then-Judge (now Justice) Samuel Alito explained in a 1993 decision: "Read in its broadest literal sense, the phrase is almost completely open ended. Virtually any set including more than one person could be described as a 'particular social group.’” He did not say that in a good way.
As part of EO 14010’s regulatory process, Biden AG Merrick Garland on June 16 vacated Sessions’ opinion in Matter of A-B- in his own decision in the case. He explained that he was doing so to facilitate the rulemaking Biden directed in that EO, and (ominously) “to leave open the questions” concerning whether aliens who have been victims of crime are eligible for asylum as “members of particular social groups”.
How broadly the ultimate regulations will define “particular social group” for asylum eligibility purposes is anyone’s guess, but there are plenty of reasons to believe that they will massively expand the current standards.
Domestic violence is, sadly, a problem globally (even here), and gangs, crime, corruption, poverty, and insecurity plague certain parts of the countries from which most illegal migrants hail (Mexico and the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras).
The White House has referred to corruption, violence, and poverty as “root causes” for migration from Central America. That means that Biden believes those factors, and not his own ham-handed jettisoning of the policies that his predecessor implemented to successfully bring illegal migration under control, are the reasons why hundreds of thousands of nationals of each country are coming to the United States.
Corruption, violence, and poverty have not traditionally been a basis for asylum, but if the Biden administration gets its way, they may be soon.
Preventing Federal Court Review
The problem is that the president’s plans would effectively prevent federal court review, which is the traditional channel by which such an illegal expansion of asylum eligibility could be challenged. If AOs were given the authority to start illegal migrants down that five-year path to citizenship, their decisions could be tightly controlled by the administration with no judicial review. Only the handful of asylum denials would make it to court.
It’s one way to tackle the immigration court backlog (currently 1.4 million cases), but it would do nothing to improve the wages and working conditions of the millions of unemployed and under-employed American workers with whom those newly minted asylees would compete.
Perhaps that is part of the plan. On August 22, the Wall Street Journal’s Mary Anastasia O’Grady opined: “A humane U.S. immigration policy would recognize the need for workers from outside the country and give migrants a legal path to those jobs by allowing them to apply for visas at local consulates.”
That assumes that there aren’t unemployed American workers, a highly questionable proposition given the 5.4 percent unemployment rate, but in any event, O’Grady contends that such a plan should be “[c]oupled with an unmistakable message that asylum claims — even with children in tow — aren’t a free pass.” But what if an asylum “free pass” were the administration’s message and labor plan?
O’Grady quotes a “scholar” from the Cato Institute who asserts: “The asylum process is essentially our work-visa program.” If it is, it shouldn’t be, and the Biden administration should not be allowed to make it such.
My colleague Mark Krikorian has argued that the United States should withdraw from the U.N. refugee treaty and scrap our current asylum system. His arguments are persuasive, but his proposition seems far-fetched — for now.
That would change quickly if, as it appears the Biden administration is planning, currently limited asylum eligibility were massively expanded and hundreds of thousands of illegal migrants were granted asylum rapidly each month, placed on a five-year path to citizenship, and put in direct competition for jobs with the currently unemployed.
Those new asylees could be voting citizens by 2027 (and registered voters by 2028, a presidential election year, and most would likely remember who gave them that right), but some large proportion of the current citizenry would not like the tax increases, swollen classroom sizes, limited emergency room capacity, and reduced public services that would inevitably result.
More Illegal Entries
To say nothing of the effect that it would have on the border. If asylum, work authorization, and a path to stay and work in the United States forever were as simple as entering illegally and mouthing the words “credible fear”, the nearly 200,000 Border Patrol apprehensions at the Southwest border in July will look like a drop in the bucket.
Voters don’t like the chaos at the border now; more illegal entries won’t improve Biden’s standing.
Plus, an even larger surge of illegal migrants will not only increase the dangers that each faces on the trek to the United States, but it will also leave an undermanned Border Patrol even more helpless to stop the flow of drugs over that border that are destined for our cities and towns (as a recent federal complaint filed by the state of West Virginia shows is bad enough now).
Stein’s Law states that: “If something cannot go on forever it will stop.” The unsustainable level of illegal immigration that boundless asylum eligibility would create would thus end asylum in this country.
Comments on the proposed AO asylum regulation are due by 11:59 p.m. EST on October 19, and anyone can submit one. The Biden administration would be well-served if it were to read each of those comments, from an untold number of Americans, before it implements that plan, and before it expands the current asylum laws any more than it already has.
EO 14010’s October 30 deadline can be broken, and should.