The Good — and a Lot of Bad — in the Senate Border ‘Deal’

Two belts leading to two buckets, both of which will soon be overflowing unless DHS complies with the border mandates Congress has already set

By Andrew R. Arthur on February 5, 2024

Read More Analysis on the Senate Immigration Bill

in absentia

Senate negotiators have finally released the text of a “deal” they’ve been hashing out for two months to trade $61 billion in foreign aid to Ukraine for border “reforms”. There’s some good in that bill and a lot of bad — much of it so expertly written that it would take thousands of words to explain why it’s bad. Here’s a brief taste.

Doesn’t Close the Loopholes. Anyone familiar with the border crises that have confronted not only President Biden, but also presidents Trump and Obama, understands that there are three loopholes that smugglers have exploited for over a decade: an exception for the quick removal of unaccompanied alien children (UACs) from non-contiguous countries in a poorly thought-out 2008 bill; a 20-day release requirement for adults who enter illegally with children in “family units” (FMUs), the product of a poorly though-out 2015 district court decision; and the low “credible fear” standard for border migrants seeking asylum.

This bill not only does little to close the second and third loopholes, it actually makes the first worse. It increases the perverse incentives that encourage parents to entrust their children with rapacious smugglers to begin with by ensuring that the ones aged 13 and younger receive free, taxpayer-funded legal counsel (sec. 3512).

Family Units and Credible Fear. The FMU issue and the credible-fear loophole are tied together to a degree in the bill, starting with section 3141, which would add a new section 235B to the Immigration and Nationality Act (INA) and create something called “Provisional Noncustodial Removal Proceedings” (PNRP).

That section would allow the DHS secretary — based only on undefined “operational circumstances” — to send migrants to PNRP if they express a fear of persecution or request asylum. Those are the exact same triggers for credible fear interviews in the current section 235(b)(1) of the INA for aliens at the borders and the ports who have either fraudulent admission documents or no documents at all (including illegal migrants).

Unlike section 235(b)(1) of the INA — which mandates detention for illegal migrants who are subject to expedited removal, including those found to have valid credible fear claims — that PNRP process under proposed section 235B of the INA mandates release. Not “authorizes” release — mandates it.

Release for the adults in PNRPs would be premised on those aliens being placed on “alternatives to detention” (ATD), but even that rule is not absolute. Only the adult head of a household released under PNRP is subject to ATD, not other adults and not the children. That ATD is a costly failure that does nothing to ensure that aliens appear for removal has been seemingly ignored.

In any event, once those aliens are released from custody under PNRP, they’re expected to appear within 90 days at a “protection determination interview” (PDI). There is a load of protections for the alien in that process — including the right to counsel and a provision barring that interview from occurring at an ICE office — and none for the American people or the rule of law.

At that PDI, the asylum officer may decide whether the alien should be granted asylum or another form of humanitarian relief (withholding of removal —“statutory withholding” — under section 241(b)(3) of the INA or protection under CAT — the “Convention Against Torture”).

That essentially combines the current credible fear interview process under section 235(b)(1) of the INA with the asylum adjudication process into one — without any of the protections immigration courts offer to ensure that bogus or fraudulent claims don’t result in asylum grants.

I Called It — But I Had No Idea How Bad It Would Be. I warned this could be on the table in those Senate talks given details that appeared in the New York Times on January 22. As I explained:

The Times’ vague assertion that the Senate proposal would “expedite the expulsion of migrants who lack lawful reasons to stay in the country” could mean any number of things, but it raises the specter the deal may codify the Biden administration’s so-called “Asylum Officer Rule”, which authorizes USCIS asylum officers to grant asylum to border migrants following “nonadversarial interviews”.

That rule, which was published in March 2022, broke with more than two decades of practice and precedent, under which asylum applications for aliens who had been subject to expedited removal could only be heard by immigration judges in removal proceedings.

Those removal hearings are “adversarial”, as an ICE attorney is present to confront the alien’s claims, cross-examine the alien and any witnesses, and offer country conditions and impeachment evidence. The ICE attorney can also appeal an erroneous grant to the Board of Immigration Appeals, a protection that the Asylum Officer Rule lacks (the decisions are instead reviewed by USCIS supervisors).

As I noted in December, asylum officers under that rule granted asylum at nearly double or triple the rate that immigration judges had in the same class of border cases. Why “double or triple”? Because asylum officers had “administratively closed” (read: “shelved”) a third of those cases, even though the rule itself provides no means by which they could do so.

The expressed advantage of the rule is that it is supposed to speed up the adjudication of border asylum claims, and while it definitely expedites the rate at which border aliens are granted asylum, there’s no guarantee that the rate at which they are denied asylum and removed would be any quicker.

Which is more or less what happened, only worse. Asylum officers can issue a “positive protection determination” if the alien “demonstrates by clear and convincing evidence, that the alien is eligible for asylum”, statutory withholding, or CAT.

That essentially lards a “clear and convincing” standard onto different forms of protection that have their own individual burdens of proof — “well-founded fear” of persecution for asylum and “more likely than not” that an alien will be persecuted or tortured for statutory withholding and CAT, respectively.

That sounds swell in the abstract, but is meaningless in the concrete. Adjudicators determine whether people will be harmed or not; the verbiage changes nothing.

That asylum officer grant determination under the bill is subject to review by a supervisory asylum officer “to determine whether such grant is warranted”. That provides some protection for the system, but not a lot.

First, those asylum officers and their supervisors are all within USCIS, meaning DHS Secretary Alejandro Mayorkas will write the rules under which this process operates. The regulations implementing this process must be published, but there are no guarantees that anyone outside the agency will ever see the standards asylum officers will actually apply, so you will have to trust Mayorkas.

Second, there is a difference between whether an asylum “grant is warranted” — which has no legal meaning — and whether the alien merits asylum. I explained the issues with the current asylum officer “affirmative asylum” adjudication process in that January 26 piece, and they are likely to be replicated in this new process. That’s a broad avenue for Biden administration mischief.

Once the supervisor blesses the asylum officer’s decision, the alien automatically receives work authorization and — as noted — the alien can simply be granted asylum and placed on a path to citizenship.

If the alien receives a “negative protection determination” from the asylum officer, the alien is to be ordered removed. That’s an improvement of a sort, at least on paper.

The problem is that an alien who receives a negative assessment can either request reconsideration of that assessment within five days of service by the director of USCIS (which, if denied, is a final order of removal) or administrative review by a Protection Appellate Board (PAB), a new body made up of three asylum officers “from diverse geographic regions” (why that’s important, I don’t know).

I’ll return to the PAB below.

Alternatively, the asylum officer may send an alien who receives a positive protection determination, as well as all aliens whose PNRPs aren’t completed within 90 days, to separate “Protection Merits Removal Proceedings” (PMRPs), included in section 3142 of the bill, which would create a new section 240D of the INA.

Aliens in that PMRP process receive protection merits interviews (PMIs), which cannot begin until at least 30 days after the alien receives notice — even though, as with the PNRP process, that PMRP process is supposed to be concluded within 90 days.

Again, the alien entitled to an attorney during that process, but the American people aren’t.

At the end of that PMI process, the asylum officer can issue either a positive or a negative protection merits determination. If it’s positive, the alien’s request for asylum, statutory withholding, or CAT is granted.

If it’s negative, the alien receives a final order of removal, assuming that the alien doesn’t ask the USCIS director to reconsider that decision and doesn’t appeal the decision by filing a petition for review with the aforementioned PAB.

The PAB will review the asylum officer’s factual decisions for “clear error”, but will assess the asylum officer’s legal determinations de novo, basically making a brand-new legal assessment.

That PAB review won’t occur for at least 30 days (that’s how much time the alien has to clean up the record), even though the statute sets a seven-day deadline “to the maximum extent practicable” for the PAB to issue a decision.

If the PAB affirms the asylum officer’s determination, the alien is ordered removed without much opportunity to seek federal circuit court review. The PAB can, alternatively, vacate the asylum officer’s determination and removal order and grant the alien asylum, or leave the order in place but grant the alien statutory withholding or CAT.

That said, the alien can file a motion to reconsider with the PAB, pointing out errors (factual or otherwise) in its decision within 30 days, or a motion asking the PAB to reopen its decision at any time, based on new facts.

The fact that a motion to reopen is pending won’t necessarily stop the alien’s physical removal from the United States, but the fact that this motion to reopen opportunity exists at all simply reveals that the drafters understand that ICE won’t be removing any aliens who receive final removal orders.

The alien can still seek review of constitutional claims from a federal court, but it’s not clear whether that would be a circuit court in accordance with section 242 of the INA or a district-level court. They really should have clarified that.

Suits challenging the validity of that new statutory process generally “or any written policy directive, written policy guideline, written procedure, or the implementation thereof, issued by or under the authority of the” DHS secretary implement this scheme can only be heard by the (famously liberal) U.S. District Court for the District of Columbia.

To be fair, though, that’s also where section 242(e)(3) of the INA requires challenges to the current expedited removal procedures be heard, as well.

Internal Relocation. One improvement that the bill makes — and it’s a minor one — is that it requires asylum officers in both the current credible fear process and in the new PNRP process to consider the alien’s ability to avoid persecution back home by relocating within the alien’s home country.

Plainly, if an alien could move from, say, Tijuana to Mexico City to avoid the harm alleged, there’s no reason for the alien to come to the United States instead, and the current regulations and case law allow adjudicators to consider such “internal relocation” in deciding whether an alien should be granted asylum as a matter of discretion.

Relocation is not, however, explicitly a bar to asylum in either the asylum statute (section 208 of the INA) or to a credible fear determination under section 235(b)(1) of the INA. This proposed amendment would add it to both.

Two Belts, and a New Bucket. This bill, in essence, sets up two separate belts onto which Mayorkas can choose to send border cases: (1) expedited removal, with credible fear and mandatory detention, possibly heading to immigration court with judges and ICE attorneys in adversarial proceedings; or (2) the PNRP process, with mandatory release, quick work authorizations, and asylum officers (who may not even be attorneys; many aren’t) making decisions after “non-adversarial” interviews in which there’s no one to cross-examine the alien, or to appeal erroneous grants.

At the end of the first belt — again, the immigration courts — there’s a huge bucket that is already overflowing with millions of cases. At the end of the second is a separate bucket, currently empty though asylum officers are also currently dealing with nearly a million pending affirmative asylum cases already.

I will leave my analysis of the “5,000 per day” limit in this bill for another day, but at a rate of a possible 150,000 new asylum claims per month, the second bucket will soon look like the first, only worse. Congress can set all the “90-day deadlines” for adjudications it wants — it can’t force asylum officers to comply with those deadlines, and soon the deadlines proposed here won’t be.

Congress should go back to the drawing board and figure out how it can force DHS to comply with the border mandates it currently has — to deter aliens from entering illegally, and to detain the ones who do. Until that’s figured out, nothing will make the crisis at the border any better.