Border Fear Claim Denials Spike Under New Border Rules — Kind Of

But the number of aliens subject to expedited removal still remains low, despite administration vows

By Andrew R. Arthur on July 10, 2023

A coalition of immigrants’ advocates are suing the Biden administration to shut down asylum limitations included in DHS’s and DOJ’s May 16 “Circumvention of Lawful Pathways” (CLAP) rule, in a case captioned East Bay Sanctuary Covenant v. Biden. While that’s not remarkable (they’ve made no secret of their intent to sue), a DHS filing in that case does pull back the curtain on how the department is applying that rule. Notably, it reveals the percentage of illegal migrants subject to expedited removal found not to have a fear of return has spiked under the CLAP rule — kind of — but DHS continues to use expedited removal only sparingly despite administration vows to apply it in “the vast majority of” cases.

Expedited Removal and Biden’s “New Border Enforcement Actions”. The Biden administration had more than a year to prepare for what was feared would be an onslaught of migrants once CDC orders directing the expulsion of all illegal border-crossers, issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic, expired on May 11. That was on top of a record number of Southwest border apprehensions (more than 2.2 million) in FY 2022.

The White House waited until January 5 to really get serious, however. That’s when it issued a “fact sheet” captioned “Biden-⁠Harris Administration Announces New Border Enforcement Actions”, in which the administration announced, among other things, that it would impose “new consequences” for illegal migrants, including increasing the use of expedited removal. It explained:

Effective immediately, individuals who attempt to enter the United States without permission, do not have a legal basis to remain, and cannot be expelled pursuant to Title 42 will be increasingly subject to expedited removal to their country of origin and subject to a five-year ban on reentry.

DHS Secretary Alejandro Mayorkas doubled down on that claim, vowing in a May 11 White House press conference announcing his department’s post-Title 42 plans that: “The vast majority of individuals will indeed be placed in expedited removal, and if they do not qualify, will be removed in a matter of days, if not weeks, from the United States.”

In reality, there’s nothing “new” about expedited removal, which Congress added to section 235(b)(1) of the Immigration and Nationality Act (INA) in 1996. It allows “immigration officers” — both CBP officers at the ports of entry and Border Patrol agents between them — to remove aliens who entered illegally or without proper documents without placing them into removal proceedings before an immigration judge.

Congress’ reasons for creating expedited removal for border migrants were two-fold: to deter illegal entries and to crack down on bogus asylum claims.

That said, expedited removal comes with a catch. By statute, if an alien subject to expedited removal “indicates an intention to apply for asylum” or claims a fear of return, CBP must refer the alien to a USCIS asylum officer for an interview to determine whether the alien has a “credible fear of persecution” — essentially a screening process to determine whether the alien may be eligible for asylum.

“Credible fear of persecution” is defined in section 235(b)(1) of the INA as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.

If the alien receives a “positive credible fear determination” from the asylum officer, the alien is placed into “regular” removal proceedings before an immigration judge to apply for asylum. If the asylum officer issues a “negative” determination, however, the alien can either seek to have an immigration judge review the officer’s decision or take an order of removal.

That said, expedited removal may be a novel concept for the Biden administration, which has grievously underused that authority in lieu of simply releasing illegal entrants from custody (in violation of statutory mandates in section 235(b) of the INA).

For example, of the more than 100,000 illegal migrants apprehended by Border Patrol agents at the Southwest border in April who weren’t expelled under Title 42, just over 8,600 (8.5 percent) were subject to expedited removal. By contrast, more than 65,000 others were released.

That was three months after the White House issued its “fact sheet”, but to be fair the month before Mayorkas made his vow.

“Reasonable Fear” and “Credible Fear of Torture”. While section 235(b)(1) of the INA only talks about credible fear in the asylum context, certain aliens are barred from receiving asylum while aliens who have been removed and reentered illegally whose removal orders are reinstated aren’t eligible (under section 241(a)(5) of the INA) for any discretionary relief from removal (including asylum).

Not to worry, however, because for such aliens the Clinton administration — by regulation — created a separate border screening process called “reasonable fear”. The regulation explains:

The alien shall be determined to have a reasonable fear of persecution ... if the alien establishes a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion.

That screening standard is essentially identical to the burden that an alien must carry to prove eligibility for asylum, but the only benefit that such an alien would be eligible for is withholding of removal under section 241(b)(3) of the INA — which is like asylum, except a withholding applicant bears a higher burden of proof (“more likely than not”, compared to “well-founded fear”) and receives fewer benefits.

Not quite done yet, the Clinton administration also created — again by regulation — yet another border-screening process called “credible fear of torture”, for aliens who can’t show that they fear harm on account of any of the “five factors” for asylum (race, religion, nationality, membership in a particular social group, or political opinion), but nonetheless would be tortured if returned.

It requires the alien to show that “there is a significant possibility that the alien is eligible for withholding of removal ... under the Convention Against Torture [CAT]”. A “reasonable fear of torture” standard is included and tracks the language in the “reasonable fear of persecution” regulation.

The CLAP Rule. All of which lays part of the groundwork for the Biden administration’s new border asylum policies in the CLAP rule, best explained first by delineating the classes to which the new rule does not apply.

Under that rule, the asylum claims of aliens who pre-schedule their illegal entries at the Southwest border ports of entry using the CBP One app (under what I have termed the “CBP One app interview scheme”) or who show they were frustrated in their attempts to use that app will still be adjudicated under the pre-CLAP “credible fear” standards, as will the claims of aliens who sought and were denied humanitarian protection in a third country they transited before crossing the border illegally and the claims of nationals of Venezuela, Nicaragua, Haiti, and Cuba who entered (at the border ports or interior airports) under a “parole” program the administration created specially out of whole cloth for them (which I call the “VNHC Parole Program”).

For other illegal border-crossers who enter in the two-year period beginning May 11, as my colleague Elizabeth Jacobs has described in depth, the CLAP rule imposes a “rebuttable presumption” of asylum ineligibility. Even that presumption is not iron-clad, however, because as Jacobs has explained:

Applicants for asylum can ... avoid this presumption against eligibility if they demonstrate that they, or a family member traveling with them, experienced “exceptionally compelling circumstances”. These circumstances include, but are not limited to, establishing they faced an acute medical emergency, or that they experienced an imminent and extreme threat to life or safety, such as a threat of rape, kidnapping, torture, or murder.

Most importantly, 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 241(b)(3) of the Immigration and Nationality Act (INA) (covering persecution claims) or under 8 C.F.R. 1208.16(c)(2) (covering torture claims). Unaccompanied alien minors and trafficking victims are also exempt from this rule.

That’s why it’s a “rebuttable presumption” in the CLAP rule, because aliens making such showings can prove that they should still be allowed to claim fear under the old rules notwithstanding their illegal entries.

All other aliens subject to expedited removal who make fear claims but don’t fall within the exceptions or for whom the CLAP rule presumption remains unrebutted are subject to that old “reasonable fear” screening standard, previously only applicable to aliens who were not eligible for asylum by statute, that I referred to above.

“Declaration of Blas Nunez-Neto”. Which brings me to the declaration of Blas Nunez-Neto, DHS’s assistant secretary for border and immigration policy, which was filed by DOJ on June 16 in East Bay Sanctuary Covenant in support of the new border limitations in the CLAP rule.

It’s lengthy, running 26 pages, but Nunez-Neto discloses some key information about how DHS is processing illegal entrants on pages 9 and 10, covering the period between May 12 and June 13.

He explains that USCIS:

has interviewed approximately 8,195 noncitizens who have been subject to the rule. Out of these noncitizens, 261 (3 percent) were able to establish an exception to the rule; 689 (8 percent) were able to rebut the presumption; and 7,243 (88 percent) were subject to the presumption. Of the noncitizens who were able to establish an exception to the rule, 189 (72 percent) were able to establish a credible fear of persecution or torture under the “significant possibility” standard. Of the noncitizens who were able to rebut the presumption, 528 (77 percent) were able to establish a credible fear of persecution or torture under the “significant possibility” standard. Of the noncitizens who were subject to the rule’s presumption, 3,036 (42 percent) were able to establish a credible fear of persecution or torture under the “reasonable possibility” standard.

Let me translate. During that four-week period, 8,195 illegal entrants subject to expedited removal either asked for asylum or claimed a fear of harm if returned.

Of that group, 3 percent established they had been paroled, came via the CBP One app interview scheme, or applied for humanitarian protection abroad, and therefore fell within an “exception” to the rule.

In addition, 8 percent of the rest asserted that they entered with an acute medical emergency, faced an imminent threat to their life and safety from criminal predation outside the country, or had been trafficked to the United States, and therefore rebutted asylum ineligibility under the CLAP rule.

Each was screened under the credible fear standard, with 72 percent of the former group of aliens and 77 percent of the latter receiving positive credible fear determinations — meaning that they were referred to removal proceedings and, as I will explain below, likely released.

Next, 42 percent of those 8,195 aliens (3,036 aliens in total) failed to show they either fell within an exception to or to rebut asylum ineligibility under the rule, but nonetheless satisfied the higher “reasonable fear” standard that heretofore had only applied to aliens who were statutorily barred from receiving asylum.

Despite that fact, those aliens screened under the higher reasonable fear standard — like the aliens screened under the credible fear standard because they fell within an exception to or rebutted the presumption under the CLAP rule who were found to have a credible fear of persecution or torture — are sent to immigration court where they can all apply for asylum.

If all this sounds confusing, it is (the plaintiffs in East Bay Sanctuary Covenant refer to the CLAP rule as “convoluted” — one of the few conclusions in their complaint I agree with), but the Nunez-Neto declaration makes clear that the sole utility of that rule is that it requires a certain class of illegal migrants in expedited removal to bear a higher burden of proof before they are sent to immigration court.

Screening Time. The other important fact in the Nunez-Neto declaration is that USCIS has cut the time that it takes to do a fear interview (credible or reasonable) to 13 days from apprehension, less than half the time (30 days) that screening process took in the period 2014 to 2019.

Of course, most if not all those aliens subject to expedited removal who were waiting for their fear interviews under the Obama and Trump administrations were detained in ICE custody during that period. It’s not clear that they are under the CLAP regime, but that short timeframe suggests they are — which is a positive development in an administration that has been loath to comply with any of the detention mandates in the INA.

Detention. The plaintiffs in East Bay Sanctuary Covenant complained that the Biden administration had revived a Trump-era practice of conducting fear interviews in CBP custody starting in April, but I seriously question whether the agency is keeping those aliens in its short-term facilities for 13 days, for a couple of reasons.

First, the Nunez-Neto declaration asserts that “thousands” of border aliens subject to the CLAP rule “are currently in CBP or ... ICE ... custody going through the expedited removal process”.

Second, he avers that on June 11, ICE had 29,800 aliens in its custody (87.6 percent of its daily authorized capacity of 34,000 beds), up from 22,000 detainees on May 10. Given that ICE booked-in fewer than 4,400 aliens that its agents apprehended in the interior in June, the other 25,000-plus aliens in its detention had to have been border cases, most claiming credible fear.

Where’s All the Expedited Removal the Administration Promised? All of that said, where’s all the heavy emphasis on expedited removal at the Southwest border that the White House and Mayorkas (in particular) promised?

CBP statistics reveal that of the nearly 140,000 illegal migrants apprehended by Border Patrol agents at the Southwest border in May who weren’t expelled under Title 42, fewer than 23,800 (17 percent) were subject to expedited removal. That might be double the percentage of apprehended aliens from April, but it’s not a “vast majority” of anything unless you are bad at math.

Nunez-Neto also fails to disclose how many of the 4,442 aliens he references who were subject to expedited removal who received either negative credible fear determinations or negative reasonable fear determinations from asylum officers were removed. Mayorkas can subject every illegal entrant to expedited removal (and sho. uld), but it’s meaningless unless the unlucky ones are deported.

Conclusion. Thanks to the CLAP rule, a small group of illegal migrants who claimed a fear of return are now subject to being removed, Nonetheless. the Biden administration is still failing to fully employ expedited removal, even though it’s the main tool Congress gave DHS to deter illegal entries and bogus border asylum claims. So don’t expect things at the Southwest border to get better anytime soon.