DHS Data Dump Shows Why Fixing ‘Credible Fear’ Won’t Fix the Border

Senate negotiators should know: Biden doesn’t use expedited removal like he should

By Andrew R. Arthur on January 11, 2024

In a recent post, I discussed an unexpected data dump late last Friday from the newly formed DHS Office of Homeland Security Statistics (OHSS). OHSS’s report makes one thing clear that Senate negotiators working on border reforms should keep in mind: Fixing “credible fear” — the screening process for asylum claims by aliens subject to expedited removal — won’t fix the border because, by and large, Biden’s CBP refuses to use expedited removal.

Expedited Removal. Before I get to the data, some quick background is necessary.

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended section 235(b)(1) of the Immigration and Nationality Act (INA) to create what is known as “expedited removal”. The express purpose of that amendment was to speed the deportation of aliens seeking to enter illegally and to curb abuse of our generous asylum system by aliens simply coming to work.

The expedited removal process in section 235(b)(1) of the INA allows CBP to quickly deport illegal aliens encountered at the borders and the ports without first obtaining a removal order from an immigration judge (IJ) following removal proceedings conducted under section 240 of the INA, which is required for most other removable aliens.

Expedited removal, however, comes with a “catch”. That catch requires CBP officers at the ports and Border Patrol agents to refer aliens subject to expedited removal who express a fear of harm or just ask for asylum to Asylum Officers (AOs) at USCIS, for what is known as a “credible fear” interview.

The “credible fear” standard is low, defined by statute 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 under section 208” of the INA.

At the end of that informal interview, the AO issues a determination as to whether the alien's claim of fearing return to his country is credible. Generally, if the AO issues a “positive credible fear determination”, the alien is referred to an IJ to apply for asylum in removal proceedings, but when an AO makes a “negative credible fear determination”, the alien can either ask for an IJ to review that decision or be removed.

According to DOJ statistics, 81 percent of aliens subject to expedited removal who claimed a fear of harm or requested asylum between FY 2008 and the fourth quarter of FY 2019 received positive credible fear determinations from AOs, and an additional 2 percent who sought IJ reviews of negative determinations were also found to have credible fear — 83 percent in total.

During that period, however, IJs granted asylum to fewer than 17 percent of aliens found to have a credible fear following expedited removal. By contrast, 32.5 percent of those aliens were ordered removed in absentia when they later failed to appear in immigration court.

It’s commonly believed that this wide gap between the percentage of aliens found to have credible fear and the percentage of such aliens later granted asylum was due to the low credible fear standard, and there is a lot of truth to that conclusion. As I recently explained, however, the manner in which USCIS has implemented the credible fear process is also likely to blame, as well.

Senate Negotiations. Prominent senators from both sides of the aisle are currently attempting to negotiate border reforms in exchange for billions of dollars in military aid to Ukraine in its ongoing fight against the Russian invasion.

Those negotiations are hush-hush, but numerous outlets have reported that asylum fixes generally — and a tightening of the credible fear standard in particular — are a key goal of the GOP side.

For example, the Associated Press has reported: “The senators and the Biden administration have considered toughening the so-called credible fear standard that’s used in the initial interviews to determine if migrants seeking asylum would likely have a winnable case before an immigration judge.”

It is within Congress’s and the administration’s purview to amend the INA in any manner they see fit, and the credible fear standard is clearly a low bar for illegal migrants to clear. If, however, any of those negotiators believe that simply tightening that standard will somehow end the migrant crisis, they should take a look at OHSS’s statistics, which show that such an amendment wouldn’t amount to much, at least not until the Biden administration halts its other border policies.

OHSS’s Statistics. On January 4, OHSS released a report captioned “Immigration Enforcement and Legal Processes Monthly Tables”, which includes links to a series of Excel spreadsheets. One of those spreadsheets is captioned “SW Border Credible Fear Screenings Referred to USCIS by Citizenship: Fiscal Years 2014 to 2023 (September 2023)”.

“SW Border”, of course, is shorthand for the Southwest border, and that spreadsheet lists, by month, the number of aliens encountered by CBP at the U.S.-Mexico border who were subject to expedited removal and thereafter referred to AOs for credible fear interviews.

In FY 2023, CBP encountered more than 2.475 million illegal aliens at the Southwest border, with Border Patrol agents apprehending more than 2 million illegal entrants and CBP officers at the ports deeming nearly 430,000 others inadmissible.

All of those aliens nabbed by Border Patrol agents and nearly all of the inadmissible aliens at the ports should have been subject to expedited removal under the terms of section 235(b)(1) of the INA — the tool Congress gave those officers and agents 27 years ago to respond to migrant surges of this sort.

Despite that fact, Border Patrol agents subjected fewer than 178,000 of those illegal entrants in FY 2023 to expedited removal (8.7 percent of total apprehensions), while CBP officers at the port subjected just 7,662 inadmissible aliens to that process.

Of those just over 185,000 aliens subject to expedited removal, according to that OHSS spreadsheet, 145,091 aliens were referred to AOs at USCIS for credible fear interviews — a mere 5.9 percent of all illegal aliens encountered by CBP at the Southwest border.

The White House treats every illegal migrant at the Southwest border as if he or she were an “asylum seeker”, but those 145,091 aliens encountered at the Southwest border in FY 2023 are the only ones who fall within that definition in any sense of the term. If we only were dealing with that few aliens at the Southwest border, we wouldn’t have a crisis there at all.

“The Vast Majority of Individuals Will Indeed be Placed in Expedited Removal.” Senate Republicans could be forgiven for viewing some tightening of the credible fear standard as a panacea for what ails CBP at the Southwest border, given promises by the administration and DHS to start subjecting illegal migrants to expedited removal as they should.

Just over a year ago, on January 5, the White House issued a “fact sheet” captioned “Biden-⁠Harris Administration Announces New Border Enforcement Actions”. In that document, the administration announced, among other things, that it would impose “new consequences” for illegal migrants, including increasing the use of expedited removal:

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. [Emphasis added.]

DHS Secretary Alejandro Mayorkas thereafter 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.” (Emphasis added.)

Congressional staffers, let alone senators, don’t have time to pore over arcane DHS statistics to verify such statements, but fortunately think-tank pundits do. Those promises are sheer bunk, especially Mayorkas’s.

In the last four months of FY 2023, June to September, after Mayorkas made that pledge, Border Patrol agents at the Southwest border apprehended nearly 632,000 illegal entrants; 82,641 were subject to expedited removal (13.1 percent), while 364,445 others were simply released (57.6 percent).

By the way, I’d like to tell you that the other approximately 29.3 percent of those illegal migrants were removed, but I can’t.

According to CBP, it issued Notices to Appear (“NTAs”, the charging documents in removal proceedings) to 66,422 other aliens agents caught and sent to ICE for detention (10.5 percent of the total), but neither ICE nor OHSS will say how many of those aliens were subsequently released. Most likely were.

Another nearly 92,000 (14.5 percent) were granted “voluntary return” and allowed to simply leave the country without any sanction, while 24,752 others (4 percent) had earlier removal orders reinstated.

Border security isn’t simple, but it’s not complicated, either. The Senate can raise the credible fear bar for aliens subject to expedited removal if it wants (and probably should), but until the administration actually starts using expedited removal — the tool Congress gave CBP 27 years ago to deter bogus asylum claims and control the border — it won’t stem the disaster at the U.S.-Mexico line.