[Note: The proposed rule has now been published in the Federal Register, where the public may submit comments on it through October 19, 2021.]
On August 18, DHS and DOJ announced the publication of new rules that would allow asylum officers (AOs) in U.S. Citizenship and Immigration Services to grant asylum, statutory withholding, and withholding under the Convention Against Torture (CAT) to aliens apprehended entering illegally or without proper documents.
Those rules would boost asylum grants (giving more migrants a reason to entering illegally), while slowing removals and aggravating the current border disaster by all-but-ensuring that aliens who have entered illegally and claimed a fear of harm are released into the United States. And the rules would encourage asylum fraud.
I wrote about parts of this plan when the Biden administration first floated it in April, in a post captioned “Biden Considering Bad Asylum Plan for Illegal Migrants: The administration should detain them as the law requires, not give them yet another ‘bite at the apple’”. Nothing good has changed between that initial plan and the proposed rule.
Here is how the system is supposed to work now: If an alien is apprehended entering the United States illegally or without proper documents, that alien is subject to “expedited removal”, meaning the alien can be removed quickly by DHS without appearing before an immigration judge (IJ) in removal proceedings.
If, however, that alien requests asylum or claims a fear of harm if returned, the alien is sent for an interview with an AO to determine whether the alien has a “credible fear”. That credible fear interview is essentially a screening process to determine whether the alien may be eligible for asylum.
Under the current regulations, if an alien receives a “positive credible fear assessment” from the AO, the alien is placed into removal proceedings to apply for asylum, statutory withholding, or CAT. If the alien receives a “negative credible fear assessment”, the alien can seek a review of that decision from an IJ.
If the IJ agrees with the AO, the alien is to be removed. If the IJ reverses and finds that the alien has satisfied the credible fear standard, the alien is placed into removal proceedings, again to apply for asylum or other immigration relief.
What the Biden administration proposes to do is to give AOs, after they have found credible fear, the authority to decide whether to grant the alien asylum. That would place the alien on a one-year path to a green card, after which the alien would be eligible for citizenship in four more years.
Even if the AO determines that the alien is not eligible for asylum, however, the proposed rule would give the AO authority to grant the alien statutory withholding or withholding under CAT.
Statutory withholding is like asylum, except that the alien’s burden of proof is higher for statutory withholding (“more likely than not” that the alien would be persecuted if returned, as opposed to past persecution or “a well-founded fear of persecution” for asylum), and certain bars to asylum (where the alien can be returned to a safe third-country or is firmly resettled elsewhere) do not apply to statutory withholding.
Withholding under CAT is a similar form of protection, but there are significant differences. To be granted asylum or statutory withholding, the alien must show some threat of persecution inflicted on account of a limited number of grounds (race, religion, nationality, membership in a particular social group, or political opinion).
CAT protection, on the other hand, is available to an alien who shows that it is more likely than not that he or she would be suffer “severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity”. No specific reason for such harm must be shown.
Neither a grant of statutory withholding or CAT places an alien on a path to a green card or citizenship. In fact, those protections can only be granted to an alien after the alien has been ordered removed.
Since the late 1990s, only IJs could grant statutory withholding or withholding under CAT. The proposed rule would overturn that practice and, as noted, allow AOs to grant aliens those protections.
Further, while AOs can approve an “affirmative asylum application” filed by an alien who is already present in the United States, the proposed rule would allow those AOs to grant asylum to an alien in expedited removal proceedings, which they have never been allowed to do.
There are several differences between current procedures and those that the administration is proposing that give more rights to aliens and fewer to the American people (both citizens and lawful immigrants). In addition, rather than limiting aliens’ rights to appeal, the proposed rule would expand them, making it more difficult for DHS to remove them while they are pursuing frivolous reviews.
Both under current regulations and under the proposed rules, that AO “credible fear interview process” is non-adversarial, meaning that a government attorney is not present to cross-examine the alien or to offer evidence that contradicts the alien’s claim.
Currently, that is saved for the subsequent removal hearing, which is “adversarial” and at which ICE attorneys can cross-examine aliens who entered illegally and offer evidence that contradicts those aliens’ claims.
Under the proposed rule, if an alien in expedited removal proceeding receives a positive credible fear assessment (as 83 percent of all aliens who claimed credible fear between FY 2008 and FY 2019 did), however, the subsequent proceeding before the AO at which the alien could apply for asylum, statutory withholding, and CAT would again be non-adversarial — except that the alien would have a right to counsel.
That means that the alien would have a right to an attorney at a proceeding that would place the alien on a path to citizenship, but the American people do not have a right to have an ICE attorney represent them to attempt to find the flaws in the alien’s claim.
That would be problematic by itself if, under the proposed rule, an AO’s denial of asylum, statutory withholding, and CAT were final. Even in that scenario, asylum grant rates would increase because the alien’s claim to protection would go uncontested.
The proposed rule is worse than even that “problematic scenario”, however, because a denial by the AO is not final.
The system proposed by the Biden administration would then give the alien the right to seek a de novo review of the AO’s denial of asylum, statutory withholding, or CAT. That means that the whole process would start all over again — and the alien would receive from the IJ what amounts to an appeal from the AO’s denial, a metaphorical “second bite at the apple”.
Nor would the alien’s appeal rights end there. The alien could then appeal the IJ’s denial to the Board of Immigration Appeals (BIA), which would be able to review the IJ’s application of the law, again de novo (the BIA is basically required to accept most IJ findings of fact).
BIA appeals exist in the law now, but only as a first layer of review, not a second because AOs can’t grant aliens apprehended at the border asylum under current law.
Of course, if the alien does not receive asylum, statutory withholding, or CAT from the AO, IJ, or BIA, the alien could always file a petition for review with the local circuit court, and if he or she strikes out there, file a petition for certiorari with the Supreme Court. That means that the alien could get an adjudication and four layers of review after entering illegally under the proposed rule.
I have not even gotten to the worst part yet.
In the expedited removal provision of the Immigration and Nationality Act (INA), section 235(b)(1), Congress mandated that aliens in expedited removal proceedings, including those claiming credible fear, be detained.
Detained until they are removed if they do not claim credible fear, detained for a credible fear interview if they request one, and “detained for further consideration of the application for asylum” if they receive a positive credible fear assessment.
While DHS has long contended that it could parole those aliens out of custody under the general parole provision in section 212(d)(5)(A) of the INA notwithstanding this congressional mandate (a contention that I question), up to this point, the department has paid lip-service to this statutory mandate.
The current regulations limit the parole of aliens in expedited removal to those situations in which DHS determines “in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.”
That regulation only pays such lip service to the law, though, because through various administrations, the department has paroled plenty of aliens who are in expedited removal when it runs out of space.
The proposed rule eliminates even the lip service. Here is the exact quote from the proposed rule, explaining how DHS plans to change the current regulations: “Under this proposed rule, DHS also would be able to consider whether parole is required ‘because detention is unavailable or impracticable.’”
Note that this proposal does not apply just to aliens who have received a positive credible fear determination — it applies to aliens who claim credible fear even before the AO has even found that the alien has a credible fear at all.
In other words, Congress has mandated that aliens in expedited removal be detained, but because DHS can’t stop the current surge of illegal migration at the Southwest border, it plans on tossing that requirement out the window. All aliens must do to be released is claim credible fear, and they will almost all be set free.
There was a reason why Congress mandated detention for aliens in expedited removal. Actually, two reasons.
First, aliens enter the United States illegally because they want to be free to live and work here. If DHS doesn’t detain aliens who enter illegally, more aliens will enter illegally.
Want proof? Up until December 2009, DHS complied with the congressional detention mandate. That month, then-ICE Director John Morton issued a directive that aliens who had received a positive credible fear assessment should generally be released on parole.
Asylum officers completed 5,173 credible fear cases in FY 2009, before the Morton parole directive went into effect. Those completions grew to 8,926 in FY 2010, 11,716 in FY 2011, and 13,607 in FY 2012, before increasing by almost 280 percent, to 36,454, in FY 2013.
By FY 2019, AOs were adjudicating more than 102,000 credible fear claims, after receiving more than 105,000, as smugglers discovered and exploited the “credible fear” loophole that allowed illegal migrants to live and work in the United States indefinitely.
The proposed rule references that increase in the number of aliens claiming credible fear, but omits the role that the Morton directive played in that increase.
Second, aliens who have been found to have a credible fear of removal and who are placed into proceedings to apply for asylum may not show up for their removal hearings if they are not detained.
In fact, between FY 2008 and FY 2019, 32.5 percent of all aliens who received a positive credible fear determination failed to appear for their for their removal hearings, and were ordered removed in absentia.
Here’s what would happen if the proposed rule were to go into effect: Smugglers would tell every alien who was about to enter the United States illegally to claim a fear of harm if returned. The number of fraudulent asylum claims would skyrocket as aliens would see such a claim as a quick ticket into the United States, and worse, the total number of aliens who entered the United States illegally would soar.
Thus, Biden’s proposed rule would be a self-fulfilling prophecy. DHS would never have enough space to detain every illegal migrant, detention would always be “unavailable or impracticable”, and more and more aliens would be released — all but begging even more to enter illegally.
I question whether the president seriously wants to dismantle immigration enforcement at the border in its entirety, but if he does, he could not have come up with a better vehicle to do so.
To recap: The rules proposed by the Biden administration would take away the rights of the American people to be represented in court when illegal migrants seek benefits that would place them on the path to citizenship. The rules would make it harder for DHS to remove those aliens by giving them more appeal rights. And they would swell already historically high levels of illegal immigration and abet fraud by promising aliens who have made bogus asylum claims freedom from detention.
If you think that illegal migration and court backlogs are bad now, just wait until these rules are allowed to take effect.