In my last post, I analyzed takeaways from the "Fiscal Year 2020 Enforcement Lifecycle Report", issued by DHS on December 31 (available from DHS here and to download from the CIS site here). One fact stuck out: Aliens encountered by CBP at the Southwest border who were detained and later released (described as "partially detained" aliens) were repatriated at a lower rate than aliens who had never been detained, and had a higher rate of pending in absentia orders of removal as well. There are likely many reasons, but the main two are weaknesses in the expedited-removal system, and the laws dealing with unaccompanied alien children (UAC).
Findings of the Lifecycle Report
The report tracked the status as of March 31, 2020, of more than 3.5 million "encounters" (Border Patrol apprehensions and determinations of inadmissibility by CBP officers at the ports of entry along the Southwest border) between FY 2014 and FY 2019, as those aliens' cases have wended their way through the immigration system.
Some of those aliens had been repatriated (via removal, return, or voluntary departure), some were still in proceedings before the immigration courts and the Board of Immigration Appeals (BIA), some had been granted relief or protection, and some were under final orders of removal but had not departed the United States.
Aliens who were partially detained were repatriated at a much lower rate (3 percent) than those who were detained (98 percent) and who were never detained (30 percent). They were also less likely than aliens who had never been detained to have been granted relief (15 percent vs. 12 percent, respectively), and more likely to still have cases pending (40 percent as opposed to 67 percent).
The partially detained aliens were, in addition, more likely than the never-detained cohort to have unexecuted orders of removal (11 percent vs. 18 percent, respectively), and in particular unexecuted in absentia orders of removal (10 percent of never detained, 14 percent of partially detained).
Why an Alien Would Be "Partially Detained"
There are four different scenarios in which an alien in the report would be partially detained: (1) The alien was encountered by CBP, handed over to ICE for detention, and released on bond or parole. (2) The alien was encountered by CBP, detained by ICE, and ordered released by an immigration judge (IJ). (3) The alien was a UAC who was sent to the Department of Health and Human Services (HHS) for placement in a shelter before being released to a sponsor. (4) The alien was encountered by CBP and released, and later detained by ICE.
While the fourth scenario is not that rare (particularly where an alien is arrested on criminal charges in the United States after a CBP release), the vast majority of these cases likely fell within the first three, because most border encounters do.
Many of the statistics above appear to be counterintuitive. Aliens who were detained, of course, are more likely to have been detained because they were removable and had weak or no claims to relief or protection, and therefore to have been repatriated. And, alternatively, aliens who were never detained were more likely not to have been detained because they did have a prima facie case for relief.
That does not explain, however, why cases of aliens who were partially detained would be pending at a higher rate than those of aliens who were never detained.
Nor does it explain the comparably higher percentage of unexecuted orders of removal for partially detained aliens and, in particular, unexecuted in absentia removal orders.
Somewhere along the line, some government official had to make an affirmative decision to release those aliens (unless he or she had to, as in the case of UAC). That release decision is based on two factors: (1) the alien does not pose a danger to the community; and (2) the alien not is a flight risk. Failing to appear at a removal proceeding is the definition of a flight risk.
Two significant reasons why the partially detained cohort would be more likely than never detained aliens to have pending proceedings and to have a higher percentage of unexecuted removal orders — and especially in absentia removal orders — has to do with weaknesses in the credible-fear process, and in the treatment of UACs from countries other than Mexico (OTM) under the laws specifically pertaining to them.
Aliens apprehended shortly after entering the United States illegally or immigrants who seek admission without documents or with fraudulent ones are subject to expedited removal under section 235(b) of the Immigration and Nationality Act (INA).
As I noted in April 2017, Congress added the expedited removal process to the INA in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to facilitate DHS's removal of such aliens. Removal is "expedited" in such cases because aliens can be removed administratively by DHS, without appearing before an IJ in removal proceedings.
While there are numerous grounds of inadmissibility under the INA, almost all of the aliens studied in the lifecycle report — that is, aliens apprehended by Border Patrol agents or deemed inadmissible by CBP officers at the ports along the Southwest border between FY 2014 and FY 2019 — would have been aliens who entered illegally, lacked entry documents, or who presented fraudulent ones, and who therefore were subject to expedited removal.
There are two reasons why aliens who were amenable to expedited removal were not administratively removed.
The first can be found in footnote 14 in the report. It notes that some aliens, and in particular adult aliens who entered illegally with children (family unit aliens or FMUs), are often issued notices to appear (NTAs, the charging documents that initiate removal proceedings) without being placed in expedited removal.
With respect to those family units, that footnote explains that many FMUs encountered by CBP since 2014 have not been placed in expedited removal "because large numbers of family arrivals have overwhelmed the Department's family detention capacity, and when detention facilities are unavailable CBP may release people with NTAs rather than holding them for [expedited removal] processing."
I discussed those FMUs in my last post, but those who were released by CBP would have fallen into the "never detained" category.
The second reason why aliens subject to expedited removal would not have been removed is because they were found to have a "credible fear" of being returned.
To comply with the United States' obligations under international law, IIRIRA added an "out" to expedited removal — the credible-fear process, under which aliens encountered by CBP who claim that they would be harmed if returned can seek protection, in lieu of removal.
Because it was intended for screening purposes, the "credible fear" standard is low, and intended to assess whether an alien could be eligible for asylum, not whether the alien is eligible (a determination to be made subsequently by an IJ).
For more than a decade after the passage of IIRIRA, few aliens in expedited removal claimed credible fear. In fact, in FY 2009, a year in which Border Patrol agents alone apprehended 540,865 aliens at the Southwest border, asylum officers (AOs) in USCIS considered only 5,523 credible fear claims.
By FY 2014, as the lifecycle report notes, the agency received 60,000 fear claims (both credible fear and reasonable fear, the latter where the alien is subject to reinstatement or to administrative removal as an aggravated felon), in a year in which there were more than 94,000 fewer CBP encounters total (446,060) along the Southwest border than, as noted, Border Patrol apprehensions there in FY 2009.
Under section 235(b) of the INA, aliens who claim credible fear must be detained pending a credible fear interview, and if found to have a credible fear, for consideration of the alien's asylum claim by an IJ. Despite this fact, in May 2005, the BIA held that aliens in removal proceedings following a positive credible fear determination were eligible for bond from an IJ.
It was only in April 2019 that then-Attorney General William Barr rectified this error and held that those aliens were not eligible for bond by statute. The Supreme Court had, in essence, reached the same conclusion in February 2018, as Barr noted.
There is no way to determine how many tens of thousands of aliens who were in removal proceedings after making credible fear claims were ordered released by IJs in that almost 14-year span. Each, however, from FY 2014 until Barr's April 2019 decision would have been counted in the lifecycle report as a "partially detained" alien.
And, of course, ICE maintains the discretion under section 212(d)(5)(A) of the INA to parole aliens who received positive credible fear findings by AOs into the United States. They would also count as "partially detained".
In fact, on December 8, 2009, ICE issued a directive favoring the parole of aliens who received positive credible fear determinations. In my opinion, the increase in fear claims after FY 2009 — and in particular, beginning in FY 2013, when the number of AO credible fear determinations jumped to 33,283 from 13,607 the fiscal year before — was driven by the availability of parole for foreign nationals seeking to enter, live, and work in the United States illegally. There is no other single factor that would explain the massive increase in fear claims.
The lifecycle report states that 68 percent of the aliens in the studied encounters who had made fear claims fell within the "partially detained" cohort. It does not, however, detail how many of the remaining 32 percent were continuously detained or never detained.
Nonetheless, tens of thousands of aliens who made fear claims during the period studied were ordered removed in absentia, a number that has increased in recent years (as fear claims have also increased). According to DOJ statistics, between FY 2014 and FY 2019, IJs issued 51,535 in absentia orders in cases originating with a credible fear claim — the majority (28,554, or 55.4 percent) in FY 2018 and FY 2019.
By comparison, only 24,127 aliens in cases originating with a credible fear claim in which an IJ issued a decision between FY 2014 and FY 2019 were granted asylum (in 44,120 other cases, asylum was denied). I will note as an aside that the number of both grants and denials were higher in FY 2018 and FY 2019 than in the prior four fiscal years — logically, again, given the increase in fear claims.
Considered as a whole, these statistics suggest that many aliens who claim credible fear are simply doing so in order to enter and remain in the United States — not because they have a valid claim for asylum they intend to pursue.
In fact, according to DOJ, between FY 2014 and FY 2019, in cases arising from a credible fear claim in which IJs have issued decisions, no asylum claim was filed in anywhere between 39.26 percent of the time (in FY 2018) and 54.22 percent (in FY 2014).
Taking a broader view — again according to DOJ statistics — of 100 aliens who claimed credible fear between FY 2009 and the fourth quarter of FY 2019, 83 percent would be referred for removal proceedings, but 45.78 percent of those referred would never claim asylum (just less than 17 percent would apply for and receive asylum).
This weakness in the expedited removal process presents a significant challenge to President-elect Joe Biden. He has vowed to decrease detention and expand (read: weaken) the standards for asylum. That will offer new incentives for foreign nationals considering illegal entry — and for smugglers.
OTM UACs have also boosted the number of aliens encountered along the Southwest border by CBP who were partially detained, but never removed.
Under the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), DHS must transfer non-Mexican UACs to the custody of HHS for placement in shelters, and ultimately to "sponsors" in the United States — most of whom are themselves here illegally. That would place them in the category of "partially detained" aliens.
Under section 208(b)(3)(C) of the INA, as amended by the TVPRA, UACs receive "two bites" at the asylum "apple", regardless of whether they are subject to expedited removal or not. They may apply for affirmative asylum from an AO, and subsequently for defensive asylum from an IJ.
Some 290,000 of the more than 3.5 million encounters in the lifecycle report involved OTM UACs. Given the fact that, in addition to asylum, UACs may also be eligible for other immigration benefits (such as a green card through "special immigrant juvenile" status, or SIJ), it is not surprising that they entered illegally, or that a large number of them (28 percent) have been granted some form of relief or protection.
What is surprising, however, is the fact that 16 percent of all of the UAC encounters examined had unexecuted orders of removal. That said, however, in FY 2020 alone, 6,105 UAC had been ordered removed by IJs — 4,514 in absentia.
That is a fraction of the 103,035 pending UAC cases in the immigration courts last fiscal year (with a median pending time of 1,028 days — almost three years), but still a significant number, and one that suggests that thousands of UACs have entered the United States illegally, intending to remain here indefinitely.
The fact that the TVPRA makes it so easy for UACs to remain in the United States encourages older UACs to enter illegally (72 percent of the alien minors in the lifecycle report ages 13 to 17 came as UACs, as opposed to in FMUs). It also encourages aliens unlawfully present to have their children smuggled into the United States, as Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas alluded to in his December 2013 order in U.S. v. Nava-Martinez, and as I have explained previously.
Again, this presents a challenge to the incoming Biden administration. Then-Obama-Biden DHS Secretary Jeh Johnson in June 2014 testified about the dangers posed to the UACs who were migrating illegally to the United States during a surge that year, and about the difficulties that the then-administration was facing in dealing with that surge.
The lifecycle report shows that the number of UACs who were encountered by CBP in FY 2019 was actually 11 percent larger than it had been in FY 2014. Despite this, on his campaign website, Biden criticized President Trump for his attempts to detain immigrant children.
It would be difficult for foreign national minors — and their parents illegally present in the United States, as well as potential smugglers — to hear such rhetoric and not conclude that the entry of UACs illegally into this country is about to get a whole lot easier.
The dangers of their passage to this country have not lessened since Johnson's testimony in 2014, nor have CBP facilities to process and case for those children improved much. That is a recipe for a humanitarian disaster.