The Fog Starts to Clear on Biden’s New Border Plans

Hollowing out the INA to funnel even more migrants into the United States

By Andrew R. Arthur on February 10, 2023

People who weren’t fans of President Biden’s original border plans likely aren’t huge supporters of his “New Border Enforcement Actions”, which were rolled out in a White House fact sheet on January 5. The exact parameters of the new border plans were not clear from that fact sheet, and the president did little to cut through the haze in his February 7 State of the Union (SOTU) address. Fortunately, recent disclosures, court filings, and reporting are starting to clear away some of the fog surrounding Biden’s plans — which are to hollow out the laws Congress created to keep inadmissible aliens out, and use the remaining husk to funnel even more of them in.

“New Border Enforcement Actions”. There are several different proposals in the January 5 fact sheet, but two stand out: (1) An extension of a parole program for Venezuelan nationals that will now also apply to Nicaraguans, Haitians, and Cubans, allowing 30,000 of them to enter the United States per month for a two-year period — with work authorization — on parole, in lieu of entering illegally; and (2) access for would-be illegal migrants to the CBP One app, which will enable them to schedule appointments for interviews with CBP officers at the ports of entry, again, in lieu of entering illegally.

VNHC Parole Program. The Venezuelan, Nicaraguan, Haitian, and Cuban (VNHC) parole program is straightforward, but also likely illegal.

“Parole” in the immigration context is an authority Congress gave DHS to allow otherwise inadmissible aliens to enter the United States for a temporary period without being formally admitted.

That power is extremely circumscribed by statute, which allows DHS to parole aliens into the United States “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

A group of 20 state plaintiffs has sued to stop that VNHC parole program in federal court, in a case captioned Texas v. DHS. They oppose it on several grounds, including the fact that the program was implemented without giving them an opportunity to comment and, most saliently, that it exceeds DHS’s authority to parole aliens into the United States.

In any event, that VNHC parole program is the carrot in Biden’s proposal. The stick, according to the White House, is that the Mexican government has agreed to allow DHS to expel 30,000 VNHC nationals per month back across the border under CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic.

The Mexican government is under no obligation to accept third-country (non-Mexican) illegal migrants expelled under Title 42, but while the Trump administration was able to twist Mexico City’s arm into receiving most of them, the Biden administration has been much less successful.

As I have explained recently, one group of expelled third-country migrants the Mexican government has been amenable to taking back is single adult nationals of the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras. That’s the reason why illegal entries from those three countries were relatively limited (compared to other third-country nationals, at least) in the last fiscal year.

By contrast, the Mexican government has been disinclined to receive nationals of the VNCF countries. Of the nearly 380,000 migrants from those countries who were apprehended by the Border Patrol at the Southwest border in FY 2022, fewer than 17,000 (4.4 percent) were expelled under Title 42.

In the SOTU, Biden asserted: “Since we launched our new border plan last month, unlawful migration from Cuba, Haiti, Nicaragua, and Venezuela has come down 97%”. We will have to take the president at his word on that point (CBP has not released its border statistics for January yet), but any relief that the VNHC parole program will provide will likely be short-lived.

An average of more than 42,000 nationals of the VNHC countries were apprehended at the Southwest border in the first three months of FY 2023. There’s no requirement, however, that applicants for the VNHC parole program be at or even go to the Southwest border to seek those 30,000 per month parole spots. The program will likely, therefore, attract hundreds of thousands of nationals of those countries who otherwise would not have risked the significant dangers attendant to illegal entry.

As for the risk of expulsion for illegal entrants from the VNHC countries who bypass that program, that’s dependent on the continued viability of Title 42.

The problem is that the Biden administration is fighting to end Title 42 in two separate cases: Louisiana v. CDC, in which DOJ is appealing a district court judge’s order enjoining CDC from ending the program at the Fifth Circuit; and Arizona v. Mayorkas, pending before the Supreme Court, where the administration is attempting to block state plaintiffs from intervening to appeal a different district court order that enjoins DHS from expelling illegal migrants under Title 42.

After Title 42 Ends. So, what happens after Title 42 ends? The Washington Post provided some answers to that question on February 8.

The Post explains that the administration is planning to roll out new “measures” that “will create a ‘presumption against asylum eligibility’“ and “penalize the claims of asylum seekers who cross into the United States illegally or fail to apply for protection in nations they transit through en route to the U.S. border”.

That explanation is confusing on its face. There’s already a presumption that asylum applicants are not eligible for that protection, which is why they — and not the government — bear the burden of proof when such claims are adjudicated by statute.

Reading the measures in conjunction, however, it appears that the Biden administration is considering some sort of “third-country transit” plan for third-country asylum applicants, barring them from applying for asylum unless they have previously been denied that protection in a country they traversed on their way here.

The Trump administration attempted to implement such a bar in 2019, only to have it vacated by a federal district court judge in 2020. Nonetheless, as my colleague Elizabeth Jacobs recently reported, DHS appears poised to execute some version of that plan. In a press release issued on January 5, the same day the administration issued its most recent border proposals, the department explained:

DHS and DOJ intend to issue a proposed rule to provide that individuals who circumvent available, established pathways to lawful migration, and also fail to seek protection in a country through which they traveled on their way to the United States, will be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet exceptions that will be specified.

In a brief filed with the Supreme Court on February 7 in Arizona, DOJ explains that migrants unable to overcome the rebuttable presumption referenced by DHS “could be promptly removed under” expedited removal, and also that DHS and DOJ anticipate issuing their proposed asylum rule by May 11.

They “could be promptly removed” under expedited removal in that scenario, but then they could be promptly removed under current law, too.

Congress gave the former INS and its successor agencies in DHS expedited removal authority back in 1996, and it has been sitting there in section 235(b)(1) of the Immigration and Nationality Act (INA) ever since.

Biden, however, has rarely used it. In FY 2022, for example, Border Patrol apprehended more than 1.152 million illegal migrants whom it opted to process for removal under the INA, in lieu of expulsion under Title 42. Of those “Title 8” migrants, however, fewer than 111,000 were processed under expedited removal — 9.6 percent of the total.

By contrast, the administration released about 649,000 migrants who were not expelled, just fewer than 311,000 of them on their own recognizance and just over 338,000 others on “Parole+ATD”.

Why Biden’s Expedited Removal Plan Is Not as Great as It Seems. While Biden seems to have had a change of heart on expedited removal, his plan to use it more broadly is not as great as it seems. To understand why, a brief review of expedited removal is in order.

Expedited removal is what it sounds like — a tool CBP can use to quickly remove arriving aliens who show up at the border or ports without proper entry documents, including migrants who have entered illegally.

By statute, however, CBP must transfer aliens subject to expedited removal who claim a fear of harm if returned to asylum officers to determine whether those aliens have a “credible fear” of persecution or torture.

Credible fear is a screening process to determine whether an alien may have an asylum claim, and the credible fear standard is consequently low: “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”.

In part because that standard is low, most aliens who have asserted a credible fear claim received a positive credible determination: 83 percent of them between FY 2008 and the fourth quarter of FY 2019, for example.

Once those aliens are found to have a credible fear, they drop out of expedited removal and are placed into removal proceedings to apply for protection from an immigration judge — a process that can take years due to the massive immigration court backlog of nearly 800,000 asylum applications and climbing.

If the Biden administration were to adopt a policy that barred — in whole or in part — asylum claims by third-country nationals who failed to apply for that protection in a country they transited (like Mexico), it may decrease the number of aliens asylum officers find to have a credible fear of persecution. But it likely would not decrease it by much.

The problem, as I explained back when the Trump administration was proposing its third-country transit bar, is that many if not most of those positive credible fear determinations were based not on a credible fear of persecution, but on a credible fear of torture.

Congress never included torture in its “expedited removal/credible fear” calculus when it created expedited removal in 1996. Instead, in one of its last acts in December 2000, the Clinton administration added it by regulation, which now reads:

An alien will be found to have a credible fear of torture if the alien shows that there is a significant possibility that the alien is eligible for withholding of removal or deferral of removal under the Convention Against Torture [CAT].

I’ve explained in detail elsewhere the crucial differences between asylum and CAT, but unless the Biden administration amends that regulation — which it is unlikely to do — its proposed expansion in its use of expedited removal and creation of a “rebuttable presumption of asylum ineligibility” for third-country nationals who haven’t applied for asylum elsewhere won’t do much to stop them from entering illegally.

Only detaining illegal migrants (which the INA requires) will do that, but the administration does not appear willing to budge from its unwillingness to hold those migrants until their asylum and CAT claims are adjudicated.

CBP One. As the Post reports, VNHC nationals seeking parole will apply through the online portal known as “CBP One”. It’s not the only border-related purpose, however, that the administration has for that app.

In its January 5 fact sheet, the White House explains:

When Title 42 eventually lifts, noncitizens located in Central and Northern Mexico seeking to enter the United States lawfully through a U.S. port of entry have access to the CBP One mobile application for scheduling an appointment to present themselves for inspection and to initiate a protection claim instead of coming directly to a port of entry to wait.

According to the Post, the objective of the administration’s new policies is “to steer migrants toward new legal pathways and away from predatory smugglers”, but as I explained on January 26, third-country migrants scheduling appointments at the border ports through CBP One are still going to have to get to the border, which means hiring a “predatory smuggler” to get there.

In any event, it appears that the administration has been scheduling appointments for would-be illegal migrants at the ports for some time, while using the CBP One app for that purpose is just a new wrinkle.

In a monthly reporting disclosure ordered by the district court judge in Louisiana, filed on January 17, DOJ explained:

[B]eginning on January 12, 2023, covered [aliens] who seek to travel to the United States through southwest border land ports of entry (POEs) and who believe they meet certain vulnerability criteria may use the CBP One mobile application to schedule an appointment to present themselves for inspection at participating POEs to seek a humanitarian exception from the Title 42 order. Appointments will be available up to 14 days in advance. The use of CBP One is expected to streamline processing and help ensure safe and orderly processing, but it does not guarantee that an individual will be granted an exception to the Title 42 order. Rather, processing determinations will continue to be made on a case-by-case basis by a CBP officer at the POE when the [alien] presents himself or herself at a POE at the appointed time. As recognized ... above, NGOs previously have scheduled such appointments on behalf of covered [aliens]. Such direct assistance will cease on January 25, 2023. While the number of appointments on a given date will vary by POE, DHS does not expect to increase the maximum number of humanitarian exceptions granted per day by POEs at the southern border.

That indicates that NGOs — not CBP — had been calling the shots on which migrants would be allowed access to interviews at the border ports prior to January 12, but fortunately now it will be the migrants themselves (but still not CBP) doing the scheduling.

Of course, that does not explain what “certain vulnerability criteria” would exempt migrants from expulsion under Title 42, but at least DHS is bringing some sense of order to this clandestine process.

Nonetheless, this disclosure offers a window into how, under Biden’s new border plan, migrants will be using CBP One to “initiate” their “protection claims”. Presumably, in much the same way as they advance their vulnerability criteria to seek a Title 42 exemption through the app today, they will be downloading their asylum applications or other documents through it when Title 42 is eventually lifted.

None of this is authorized by the INA, of course, but more importantly, the president’s plan turns the port inspection process (in section 235 of the INA) on its head.

Congress created that process to enable CBP to speed the entry of lawful travelers through the ports by deterring and excluding aliens seeking admission who were otherwise inadmissible. Instead of a barrier to entry for inadmissible aliens, however, this plan will convert the ports into access points for their entry.

Hollowing Out the INA. The Biden administration is essentially hollowing out the laws and procedures Congress created to effectively and efficiently impose and enforce the limits on immigration Congress itself has set and is now using the remaining husk as a tube to funnel into the United States as many foreign nationals as may desire to live and work here. And, unless Congress or the courts intervene, the administration will continue to do so, at least until the president announces his “Even Newer Border Enforcement Actions”.