DHS/DOJ: Send Credible-Fear Claimants to Asylum- and Withholding-Only Proceedings

Why wasn't this done when the president asked the first time?

By Andrew R. Arthur on June 15, 2020

  • Aliens in expedited removal who are found to have a credible fear of persecution or torture are currently referred by asylum officers to immigration judges for full removal proceedings under section 240 of the INA.
  • Section 240 proceedings are often more detailed and provide additional procedural protections, including greater administrative and judicial review, than expedited removal proceedings under section 235 of the Act.
  • Amendments to the current regulations proposed by DHS and DOJ would, instead, refer those cases to the immigration courts only for more limited asylum-only proceedings (if the alien has established a credible fear of persecution) or withholding-only proceedings (if the alien has established a reasonable possibility of persecution or torture).
  • In asylum- and withholding-only proceedings, the immigration judge does not determine whether the alien is removable or is eligible for any other form of relief aside from asylum or statutory withholding of removal or protection under the Convention Against Torture (CAT) (respectively).
  • The amendments more faithfully implement the language of the statute's expedited removal provisions and Congress's intentions in drafting those provisions than the current regulations do.
  • The president called for such regulations in April 2019, but it has taken more than 13 months for DOJ and DHS to propose them.
  • The regulations do not, however, remove DOJ's exclusive jurisdiction over CAT claims and give that authority to DHS, as I have previously suggested DOJ and DHS should do —and in particular in the expedited-removal context.

In my last post, I briefly analyzed proposed regulations that the Department of Justice (DOJ) and the Department of Homeland Security (DHS) plan to roll out today as part of a Joint Notice of Proposed Rulemaking (JNPR). The first of those proposals is to place aliens subject to expedited removal who have established a credible fear of persecution, or a reasonable possibility of persecution or torture, into asylum- or withholding-only proceedings (respectively), instead of removal proceedings under section 240 of the Immigration and Nationality Act (INA) — where their cases are currently referred. This move is truer to Congress' intent and the expedited-removal statute than current policy, and will streamline cases in immigration court.

Pursuant to the current regulations, certain aliens seeking asylum, statutory withholding of removal under section 241(b)(3) of the INA, or protection under the Convention Against Torture (CAT) are not entitled to be placed into section 240 removal proceedings, but may only have their claims heard in asylum- or withholding-only proceedings.

Specifically, identified alien crewmembers, stowaways, applicants for admission under the Visa Waiver Program (VWP), aliens admitted under the VWP who overstayed, applicants who are seeking admission or who have been admitted as witnesses or informants on S nonimmigrant visas, and applicants for admission and aliens who have been admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) pursuant to the Guam-CNMI Visa Waiver Program and overstayed their visas can only have their protection claims heard in asylum-only proceedings.

Aliens who are subject to reinstated orders of removal under section 241(a)(5) of the INA and aliens who have been administratively ordered removed under section 238 of the INA (as a result of convictions for aggravated felonies), on the other hand, are eligible to apply only for statutory withholding of removal and CAT in withholding-only proceedings.

In those proceedings, the removability of the alien is not at issue — they have either waived the right to removal proceedings or are deemed removable by law. Rather, the only issue is whether they are eligible for asylum, statutory withholding, or CAT (as the case may be) — they may not seek other forms of relief or privileges under the INA.

This contrasts with section 240 removal proceedings, in which the immigration judge (IJ) must first determine whether the alien is removable before assessing whether the alien is eligible for any form of protection or relief. Not only does that initial determination of removability (which can involve complex issues of fact and law) take up the court's time, but in section 240 removal proceedings, an alien respondent is not limited in the forms of relief that he or she can seek (although few if any aliens in expedited removal proceedings apply for relief other than asylum, statutory withholding of removal, or CAT).

In addition, in section 240 removal proceedings, DHS must establish that the alien is removable as charged if he or she fails to appear in order to obtain an in absentia order of removal. In FY 2019, there were 17,786 such in absentia orders issued in cases originating with a credible fear claim. Assuming 10 minutes of court time for each, that is 2,964 hours — or 370.5 eight-hour days wasted on the IJs' dockets.

In asylum-only or withholding-only proceedings, on the other hand, if the alien does not appear, the application is simply found to be abandoned: The alien has already been found removable.

The language of the expedited removal provisions in section 235(b)(1) of the INA demonstrates that Congress did not intend for aliens found to have a credible fear to be placed into those section 240 removal proceedings, however.

Specifically, section 235(b)(1)(B)(ii) of the INA states: "If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution ... , the alien shall be detained for further consideration of the application for asylum." [Emphasis added.]

Contrast the language in this provision with section 235(b)(2)(A) of the INA, which pertains to aliens seeking admission who are not subject to expedited removal (expressly excluded from the coverage of that provision under clause 235(b)(2)(B)(ii) of the INA), crewmen, stowaways, and aliens who are inadmissible on security and related grounds. It states that:

[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section 240 [of the INA]. [Emphasis added.]

Note that there is no reference to removal proceedings or section 240 of the INA in the expedited removal provision (section 235(b)(1)(B)(ii) of the INA) only in section 235(b)(2)(A), although Congress added both of these provisions to the INA, in section 302 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

That makes sense, because in expedited removal proceedings, a DHS immigration officer has already made the determination that the alien subject to expedited removal is removable. The only remaining question is whether the alien is eligible for asylum — which is properly resolved in asylum-only proceedings.

And, as the conference report for that legislation explains:

The purpose of these provisions is to expedite the removal from the United States of aliens who indisputably have no authorization to be admitted to the United States, while providing an opportunity for such an alien who claims asylum to have the merits of his or her claim promptly assessed by officers with full professional training in adjudicating asylum claims. [Emphasis added.]

Also note that there is no reference to statutory withholding or CAT in the expedited-removal provision. Those were additional, extra-statutory protections that were added to the credible-fear regulation during the Clinton administration. The JNPR does not remove references to those forms of protection from the credible-fear regulation, although I have previously explained why authority to grant CAT should more properly be vested with DHS instead of the IJs — not just in expedited removal cases, but more generally.

That notwithstanding, however, it is only appropriate that aliens in expedited removal proceedings found to have a credible fear of persecution or a reasonable possibility of persecution or torture should only have their claims heard in asylum- and withholding-only proceedings. Not only does the current regulation unduly burden IJs' dockets, but it is contrary to Congress's at least implied, if not express direction in section 235(b)(1)(B)(ii) of the INA.

Put more simply, the only purpose for referring such a case to the IJ is for "further consideration of the" alien's application for protection — not for a de novo review of the respondent's removability.

This is not a new idea, by the way — just one that took a while to come to fruition. In fact, in May 2019, I wrote a post captioned "President Wants 'Asylum Only' Hearings for Credible Fear Claimants: Why wasn't this done earlier?". I explained therein:

On April 29, 2019, the president issued a "Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System", which (among other things) calls on the secretary of Homeland Security, to: "propose regulations to ensure that aliens who receive positive fear determinations pursuant to section 235(b)(1) of the Immigration and Nationality Act (INA)" are placed in asylum-only proceedings or withholding-only proceedings, as the case may be.

As I noted at the time: "This is such a commonsense proposal, the only question is why no one thought of it before." Now I can add: or issued a proposed regulation doing so before June 15, 2020. Better late than never.