As the 115th Congress draws to an end, it looks as though members are getting serious about tackling the loopholes that are being exploited by aliens seeking entry along the Southwest border, which I detailed in a May 4, 2018, Backgrounder captioned "Catch and Release Escape Hatches, Loopholes that encourage illegal entry".
The House Freedom Caucus (HFC) is reportedly planning on offering an amendment on the year-end spending bill to end "catch and release" and provide $5 billion for unrestricted border-wall funding, according to an opinion piece published on December 11, 2018, by Reps. Jim Jordan and Mark Meadows on the Fox News website.
A draft of that amendment shows that it would address many, if not most of, those loopholes.
Section 101 of that amendment would amend section 292 of the Immigration and Nationality Act (INA) to make it clear that aliens do not have a right to paid counsel in immigration proceedings. While the current law is fairly clear on this, that does not mean that an enterprising activist federal judge would not order the executive branch to draw on the public fisc to provide lawyers to removable aliens. Not, respectfully, that such counsel is necessary. Pro bono attorneys have been more than willing to offer their services not only to aliens apprehended along the border, but also to class action lawsuits seeking to block Trump administration initiatives. Immigration proceedings offer good experience for young lawyers from prestigious law firms to gain courtroom experience, and those firms should leverage those opportunities.
Section 102 of that amendment would alter section 235(b)(1)(B)(v) of the INA, the "credible fear" definition, to mandate the use of the credibility standards in section 208(b)(1)(B)(iii) of the INA, which are already applicable to asylum applications through credible-fear determinations. This makes sense, because if an alien passes credible fear, the alien is referred to removal proceedings to apply for asylum. There is no reason that an asylum officer should not apply those credibility standards in making the credible-fear determination, and pass along a claim that otherwise satisfies the legal standards but that is not credible.
Section 103 of the amendment would direct uniformity in questioning by asylum officers in credible fear cases, and require recording (where practicable) of credible fear interviews, which would be made available to the immigration court considering the alien's asylum claim. The second provision is particularly important, as aliens who have passed credible fear and are applying for asylum will often claim that they were misquoted during their credible fear interviews when confronted with inconsistencies between the record of those interviews and their testimony in court.
"Going to the tape" is the best way to impeach such claims. Anecdotally, it has been said that aliens will refine their claims after speaking to other aliens, as well as to the rare unethical lawyer. The likelihood of success from such endeavor would be greatly undermined by this amendment.
Section 104 would amend the "safe third country" provision in section 208(a)(2)(A) of the INA. As currently written, that provision of the INA bars an alien from applying for asylum if the alien can be removed pursuant to "a bilateral or multilateral agreement" to a third country where the alien's "life or freedom would not be threatened", and where the alien could apply for asylum or equivalent protection. The amendment would strike the statutory requirement for "a bilateral or multilateral agreement", providing instead that a potential asylum applicant could be removed to any country that satisfied this standard.
The logic of this provision is so clear that it can easily be missed. An alien fleeing persecution should seek asylum in the first country of safety. As my former colleague Kausha Luna explained in a June 2018 post:
Mexico, through international and national law, has instituted a legal framework for the protection of refugees. This framework informs the scope of protection available to an increasing number of migrants arriving in Mexico.
If an alien is truly seeking asylum and transiting Mexico, that alien should apply for asylum in Mexico. If an alien is simply seeking better economic conditions in the United States, or to reunite with family members in this country, the alien is not actually an asylum applicant at all, and his or her claim will make it less likely that a valid claim is heard in a timely manner. This amendment will address that issue.
Section 105 would add a new paragraph 208(c)(4) to the INA to terminate the asylum status of any alien who returned to the country from which he or she sought asylum, absent changed country conditions. The section also provides a waiver of such termination if DHS determines that the alien had a "compelling reason" for that return. Again, this would limit frivolous asylum claims made by aliens who are simply seeking status in the United States, rather than legitimately fleeing from persecution.
It would also provide an exception for Cuban nationals under the Cuban Adjustment Act. Given the generous fashion in which Cuban nationals are treated under the INA, and the horrendous nature of the dictatorship that still rules that island, such an exception is reasonable, and likely to garner votes from members who would otherwise be reluctant to affect the status of those nationals.
Section 106 would amend section 208(d)(4) of the INA (captioned "Notice of privilege of counsel and consequences of frivolous application") to broaden the definition of "frivolous asylum application". Section 208(d)(6) of the INA permanently bars aliens who have made frivolous asylum applications from any benefits under the INA. The regulation implementing that provision, 8 C.F.R. § 1208.20, which was crafted by the Clinton Justice Department, defines the term "frivolous" narrowly, providing "an asylum application is frivolous if any of its material elements is deliberately fabricated." Such a definition is redundant, because fraud in immigration proceedings is already a criminal offense, and "deliberate fabrication" is another way of defining "fraud".
Nor, frankly, does that definition capture the true meaning of the phrase "frivolous". Black's Law Dictionary, the starting point for many a junior associate or law student, defines the term "frivolous" as follows:
An answer or plea is called "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the plaintiff. ... The terms "frivolous" and "sham," as applied to pleadings, do not mean the same thing. A sham plea is good on its face, but false in fact; it may, to all appearances, constitute a perfect defense, but is a pretense because false and because not pleaded in good faith. A frivolous plea may be perfectly true in its allegations, but yet is liable to be stricken out because totally insufficient in substance.
Black's, on the other hand, defines the term "fraud" in the following manner:
Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. ... Fraud, in the sense of a court of equity, properly Includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.
See the difference? Apparently the Clinton administration didn't. The plain purpose of the original amendment to the INA was to bar from relief asylum applications filed simply for delay, rather than to obtain asylum. That wasn't the way was interpreted, however.
As amended, section 208(d)(6) of the INA would provide that an asylum application is frivolous if:
[I]t is so insufficient in substance that it is clear that the applicant knowingly filed the application solely or in part to delay removal from the United States, to seek employment authorization ... , or to seek issuance of a Notice to Appeal in order to pursue Cancellation of Removal under section 240A(b).
As this provision suggests, aliens will often file asylum applications simply to obtain employment authorization, to remain in the United States indefinitely (exploiting the backlog in the immigration courts), or to be placed into removal proceedings to apply for cancellation of removal for non permanent residents. Section 106 would plug this loophole.
As an aside, and as a former congressional staffer, it is irritating when the executive branch twists a statutory provision in its implementation in such a manner. As recent experience shows, getting laws passed is difficult. The subversion of congressional will in such a manner is reprehensible. It is a shame that will take two efforts by Congress to get this right.
Section 107 would explicitly render statements, "including statements made to, and investigative reports prepared by, immigration authorities and other government officials", admissible in considering credibility as it relates to asylum claims. This will avoid the need for government attorneys to call the maker or makers of those documents (many of whom may work abroad) in order to introduce documents that contradict or undermine some aspect of an applicant's claim for immigration relief, thereby cutting down on the number of fraudulent asylum claims.
Government lawyers should not be hamstrung in their efforts to provide the immigration courts with the necessary information that they need to make the right decision. Further, most immigration judges are not familiar with the country conditions in the countries from which most asylum applicants hail. This amendment will both provide the courts with the necessary information that they need to make the right decision in asylum claims and facilitate the efforts of the government in providing that information.
Section 108 would establish criminal penalties for asylum and withholding of removal fraud, rendering such offenses felonies subjecting the actor to up to 10 years in prison. These penalties would be in addition to the criminal penalties set forth in 18 U.S.C. § 1546 for fraud and misuse of visas, permits, or other documents, which criminalizes the knowing making of a false statement with respect to a material fact in any immigration application. Again, this provision would cut down on asylum fraud, allowing meritorious claims to be heard more quickly.
Section 109 would remove the 10-year statute of limitations in 18 U.S.C. § 3291 for prosecuting asylum fraud under 18 U.S.C. §§ 1541 to 1544, and explicitly make clear that there is no statute of limitations for a violation of 18 U.S.C. § 1546 ("Fraud and misuse of visas, permits, and other documents"). This would allow the federal government to prosecute fraud in the immigration process that is not identified until years after the fact.
This is an important step because, logically, those who engage in fraud do not want to be caught. The government has limited resources, moreover, and it may take years before fraud is uncovered. It is an offense to the humanitarian impulses that undergird our asylum system to reward those who engage in fraud simply because that fraud was not uncovered until more than a decade after the fact.
Section 110 would, in essence, adopt by statute the mass migration presidential proclamation and asylum interim final rule that I synopsized in a November 9, 2018, post. Specifically, it would amend section 208(a)(1) of the INA, which currently states:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, [the expedited removal provisions in] section 235(b).
As amended, that section of the INA would limit aliens eligible to apply for asylum to those aliens applying at a designated port of entry. It would also strike the one-year period for aliens to apply for asylum in section 208(a)(2)(B) of the INA, and require aliens who are seeking asylum to apply immediately upon arrival in the United States. Finally, it would amend section 235(b)(1)(A)(ii) of the INA to make it clear that only those aliens in expedited removal proceedings who were deemed inadmissible at ports of entry are eligible to make credible-fear claims, not aliens in those proceedings who are apprehended entering illegally.
These amendments would prevent a surge of aliens entering the United States illegally, and preserve limited Border Patrol resources by requiring aliens who are seeking to make credible-fear claims to wait for processing at the ports of entry.
It is important to note that, even under this provision, legitimate asylum claims can be adjudicated and granted. Further, this amendment removes the perverse incentive for aliens to enter the United States illegally. Simply put, under the current system, if an alien without prior authorization wants to live and work in the United States, that alien can attempt an illegal entry. If the alien is not caught, the alien can proceed into the interior of the country. If the alien is caught, on the other hand, the alien can claim credible fear, with a high likelihood of being found to have credible fear and being released. This is plainly an untenable situation.
Title II of the amendment addresses the loopholes in border security that have been created by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and the Flores settlement agreement. I identified each of these as "main impediments" to ending catch and release in my May 2018 Backgrounder. As I explained therein:
Section 462 of the Homeland Security Act of 2002 vested jurisdiction over the care and placement of UACs in removal proceedings with the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS). The TVPRA distinguishes between UACs from "contiguous" countries (Canada and Mexico) from aliens who are nationals of "non-contiguous" countries. A UAC from a contiguous country can be returned if the alien has not been trafficked and does not have a credible fear. Under the TVPRA, however, OTMs are to be transferred to the care and custody of HHS within 72 hours and placed in formal removal proceedings, even if they have not been "trafficked". According to the Congressional Research Service (CRS): "ORR reported that children spent about 34 days on average in the program as of January 2016." Between February 2014 and September 2015, 56,000 (80 percent) of the children were placed with sponsors illegally in the United States and an additional 700 were placed with sponsors in deportation proceedings. In FY 2014, according to CRS, most of the UACs who were released were placed with parents or legal guardians.
The Flores settlement agreement ... , which was originally signed in 1997, has now been read to create a presumption in favor of the release of all alien minors, even those alien minors who arrive with their parents. As DHS has stated: "Under the Flores Agreement, DHS can only detain UACs for 20 days before releasing them to [HHS] which places the minors in foster or shelter situations until they locate a sponsor." The agreement encourages UACs to enter the United States illegally, and encourages the parents of UACs to hire smugglers to bring them to the United States. Further, it encourages people to bring their own children (or children whom they claim to be their own) when they make the perilous journey to the United States, thinking that it will make it more likely that they (the parents or purported parents) will be released if they travel with children.
Section 201 of the amendment would alter the most critical language of the TVPRA, Section 235, to eliminate the distinction between children from contiguous countries and children from noncontiguous countries. It would require Department of Homeland Security (DHS) to allow a UAC to withdraw his or her application for admission and require DHS to return that UAC to his or her home country. It would also enable the secretary of State to negotiate agreements for the return of such children to any country that the secretary deems appropriate.
In addition, that section would create special rules setting standards for the asylum officers who will interview those children, as well as for the conditions of such interview. Finally, it would require DHS to place any UAC it seeks to remove into removal proceedings where such UAC appears before an immigration judge within 14 days.
Moreover, it would limit notifications within 48 hours to HHS of the presence of a UAC to those aliens who are believed to have been the victims of a severe form of trafficking in persons, or who are likely to be trafficked if returned, or who have a credible fear of persecution, or who are not able to make an independent decision to withdraw their applications for admission. It would also eliminate the requirement that UACs be transferred to HHS custody within 72 hours. Instead, DHS must transfer UACs who have not been trafficked, and are not likely to be trafficked, and who do not have a credible fear, and who were able to make an independent decision to withdraw their applications for admission to HHS within 30 days of those determinations, and give DHS the latitude as to when to transfer UACs who meet those criteria to HHS.
Further, that section would require HHS to provide DHS with the names, Social Security numbers, dates of birth, locations of residence, immigration status, and contact information of any individual with whom a UAC it is to be placed prior to such placement. This enables DHS to verify that the UAC is placed with an individual who does not pose a danger to the UAC, and also dissuades illegal alien parents and family members from having their children and relatives (respectively) smuggled to the United States.
One final provision that undermines the president's border agenda relates to so-called special immigrant juveniles (SIJs), for whom a visa is available under section 101(a)(27)(J) of the INA. USCIS's website explains:
If you are in the United States and need the protection of a juvenile court because you have been abused, abandoned, or neglected by a parent, you may be eligible for [SIJ] classification. If SIJ classification is granted, you may qualify for lawful permanent residency (also known as getting a Green Card).
Again, SIJ classification (which in appropriate instances can be a necessary form of protection) provides an incentive for foreign national children and young adults to enter the United States illegally. As CRS reported in August 2014:
There has been a tenfold increase in the number of children requesting SIJ status between FY2005 and FY2013. In terms of approvals, the numbers have gone from 73 in FY2005 to 3,432 in FY2013. While the data do not differentiate among those unauthorized children who arrived unaccompanied by their parents and those who were removed from their parents because of abuse, abandonment, or neglect, many observers point to the similarity in the spiking trends of both categories.
Why the increase? It is possible, if not probable, that amendments in the TVPRA are to blame. According to CRS:
In 2008, Congress amended the SIJ provisions in the INA to broaden their applicability. The [TVPRA], among other things, amended the SIJ eligibility provisions to (1) remove the requirement that a juvenile court deem a juvenile eligible for long-term foster care and (2) replace it with a requirement that the juvenile court find reunification with one or both parents not viable. [Emphasis added.]
This means that an alien can nonetheless still be granted SIJ classification, even if another parent is present in the United States and is able and willing to care for him or her. In fact, DHS asserts:
We must end abuse of the [SIJ] visa to ensure the applicant proves reunification with both parents is not viable due to abuse, neglect, or abandonment and that the applicant is a victim of trafficking. This is necessary as many UACs are able to obtain a Green Card through SIJ status even though they were smuggled here to reunify with one parent present in the United States. [Emphasis added.]
Section 202 provides, at least in part, the fix to this loophole that DHS requests. Specifically, it would amend section 101(a)(27(J) of the INA to make it clear that an alien is only eligible for SIJ classification if the alien is unable to reunite with either of his or her parents "due to abuse, neglect, abandonment, or a similar basis found under State law." This returns logic to the SIJ provision: An alien should only be able to seek this extraordinary relief if there is no parent available to care for that alien properly.
Section 203 addresses an anomaly in the INA. Specifically, section 208(b)(3) of the INA gives UACs "two bites at the apple" when it comes to applying for asylum. Specifically, that provision grants initial jurisdiction over asylum applications filed by UACs to asylum officers, regardless of whether those applications are filed affirmatively or defensively, and even if those UACs were in expedited removal and were given an affirmative credible fear determination. Normally, by contrast, immigration courts have jurisdiction over asylum applications filed by aliens in expedited removal proceedings who were found to have credible fear.
If the idea is that UACs are unable to participate in confrontational removal proceedings, then they should be limited to non-confrontational proceedings before asylum officers. If the idea, however, is that UACs are able to participate in non-confrontational removal proceedings, then there is no reason that they should be given an opportunity for separate, non-confrontational proceedings before asylum officers.
This section of the amendment removes this exception, and applies the same rules that apply to all aliens as they relate to asylum to UACs, by removing initial jurisdiction over UAC asylum claims from asylum officers, except when such jurisdiction would initially lie with the asylum office.
Section 204 of the amendment requires quarterly reports to Congress on the number of asylum cases filed by UACs in the prior three months, and the percentage of those cases in which asylum was granted, as well as the number of UACs who had failed to appear in immigration court during the prior three months. This is an issue because of the high number of UACs who fail to appear at their removal proceedings.
As the Congressional Research Service reported in January 2017:
CRS reviewed almost two years of EOIR data covering July 18, 2014 through June 28, 2016. Of the 69,540 UAC who were given Notices to Appear (NTA) by DHS over this period, 55,793 had at least one master calendar ("scheduling") hearing. Of the total cases scheduled, EOIR classified 31,091 as completed. Of the total completed cases, 12,977 resulted in removal orders, of which 11,528 (89%) were issued in absentia, meaning that the UAC had not shown up to the hearing.
Section 205 requires a biannual report to Congress on each crime committed for which a UAC was charged or convicted in the prior six months following release under section 235 of the TVPRA. This is relevant for two reasons: First, most UACs are not screened for criminal records before they arrive in the United States. Second, violent criminal gangs actively attempt to recruit minors. For example, my colleague Jessica Vaughan has detailed the dangers posed by one such gang, MS-13:
All criminal gangs are a threat to public safety, but MS-13 is a unique problem because of the unusually brutal crimes its members have committed, its success in using intimidation to victimize and control people in its territory, and its focus on recruiting young members, often in schools.
One issue with respect to quantifying the criminal threat posed by UACs is the fact that most reporting on the issue is anecdotal. Section 205 will address this issue by mandating reporting of UAC criminality.
Section 206 of the amendment addresses perhaps the biggest loophole in our border security system of all: the Flores settlement agreement's requirement that all alien children, both accompanied and unaccompanied, be released from custody after 20 days. As I stated in the May 2018 Backgrounder that I referenced above, the Flores requirement that accompanied alien children be released after 20 days:
encourages people to bring their own children (or children whom they claim to be their own) with them when they make the perilous journey to the United States, thinking it more likely that they (the parents or purported parents) will be released if they are traveling with those children. As DHS asserts, the agreement "has incited smugglers to place children into the hands of adult strangers so they can pose as families and be released from immigration custody after crossing the border, creating another safety issue for these children."
Section 206 of the amendment clarifies that there is no presumption that an accompanied child should not be detained, and vests jurisdiction over detention determinations for accompanied children with the secretary of Homeland Security. It also mandates that an accompanied child be released only to the alien's parent or legal guardian.
This removes the perverse incentives that encourage parents to bring their children on the hazardous journey to the United States. Moreover, it removes the incentive for family units to attempt to enter the United States without proper documents based on the expectation that they will be released from custody.
Such releases have plainly provided an incentive to aliens seeking entry into the United States. According to CBP statistics, under the Trump administration, the number of aliens in family units has ballooned from a low of 1,118 in April 2017 to a high last month of 25,172, a more than 2,250 percent increase. Undoubtedly, this has been caused by realization that, notwithstanding the president's tough talk and good intentions as they relate to securing the border, Flores will still mandate the release of aliens in family units.
There is no single action that Congress could take to stem the tide of family units seeking illegal entry into the United States more effective than the provisions contained in section 206 of the amendment.
That amendment has an additional provision that has a positive effect. Subsection (c) therein preempts state licensing requirements for juvenile-detention and family-detention facilities. This will provide a uniform standard, set by the federal government, for such facilities, and ensure that states are not able to impose their will on the federal government in what is an essential federal issue.
Title III of the amendment addresses the construction of a border wall. Section 301 amends section 102(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to direct DHS to:
[T]ake such actions as may be necessary (including the removal of obstacles to detection of illegal entrants) to design, test, construct, and install physical barriers, roads, and technology along the international land border between the United States and Mexico to prevent illegal crossings in all areas.
That section also directs DHS to construct barriers along the U.S.-Mexico border "that will prevent illegal entry and will assist in gaining operational control of the border". "Operational control of the border" was defined in the Secure Fence Act of 2006 to mean: "the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband."
That section requires DHS to consult with the secretaries of the Interior and Agriculture; federal, state, local, and tribal governments; and "appropriate private landowners" to assure minimization of the impact of the construction of physical barriers "on the environment, culture, commerce, and quality of life for the communities and residents located near" those barriers, but specifically does not restrict the authority of DHS to construct such barriers after consultation.
Significantly, this section does not require the erection of barriers in places where DHS determines that there already exists a geographical barrier "or pre-constructed, impenetrable wall", but does require DHS to notify Congress of its decision not to do so.
Finally, this section gives the secretary of Homeland Security the authority to "waive all legal requirements" she deems necessary to ensure the expeditious testing and construction "of physical barriers, roads, and technology under this section." It sets December 31, 2021, as the date by which operational control of the border is to be achieved, and it appropriates $5 billion to carry out the requirements thereunder.
The final provision, Section 302, increases the authorized number of immigration judges by 375 and attorneys at the Board of Immigration Appeals (BIA) by 60. As importantly, that section calls for adequate staffing and technological resources for those judges and the BIA.
As I explained in my July 2017 Backgrounder captioned "The Massive Increase in the Immigration Court Backlog: Its causes and solutions", a lack of resources is the leading driver for the backlog in the immigration courts, which stood at 768,257 as of September 2018 according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. In that Backgrounder, I stated:
There are, simply put, too few judges (and complementary staff) to adequately do the job. With the swearing-in of 11 new IJs in June 2017, there are 326 so-called "adjudicator" IJs, including assistant chief IJs in the field who hear some cases. According to [TRAC], through May 2017, there were 598,943 pending cases in the nation's immigration courts. This means that there are approximately 1,837 pending cases per IJ. GAO determined that the average IJ completed 807 cases in FY 2015. Therefore, even if no new cases were filed, it would take the immigration courts more than two years to complete their pending cases.
IJs are not the only resource in short supply. In June 2009, TRAC reported that there were just under four IJs for each judicial law clerk (JLC). As TRAC noted, JLCs "perform many functions that can help Immigration Judges handle their caseload ... [and] are hired each year for temporary one-to-two year positions from recent law school graduates through the Attorney General's Honors Program." The fewer hours of a JLC's time that an IJ can draw upon, the more time an IJ must spend doing research on unique issues and drafting opinions. GAO also found that a lack of "other support staff" (including clerical workers and legal technicians) was a "contributing factor" in the backlog.
In an October 2018 post, I noted that then-Attorney General Jeff Sessions had pledged to hire 125 immigration judges in two years, and had actually hired 128, bringing the total number of immigration judges to 395. That said, many more judges are still needed to address the backlog, and this amendment would do just that.
More judges, without more supporting resources, however, is a waste. This amendment wisely addresses both of these issues.
As importantly, it calls for the prioritization of asylum applications. Although I am averse to micromanagement of the immigration courts, this is an important direction to those courts. One of the biggest issues with the current asylum system is that it has been gamed by certain applicants to remain in the United States indefinitely. As I noted in a December 6, 2018, post: "ICE's average length of stay in immigration detention is about 40 days, while the average length of time for immigrants not in custody to have immigrant cases on court dockets is more than eight years." If you are seeking to remain in the United States without authorization, there is no better way to do so than by filing an asylum application, and spending almost a decade litigating your case. Thoughtfully, this amendment addresses that issue.
In summary, it is unlikely that there will be meaningful immigration reform to close the loopholes that draw migrants to enter the United States illegally in the 116th Congress, starting in January. The window is quickly closing in the current 115th Congress to address those issues. HFC is correct to undertake this battle now. Their amendment is a long shot, but it is one worth taking because the alternative will be, at a minimum, two more years of massive numbers (upwards of 600,000 per year) of aliens, and in particular family units, seeking to exploit those loopholes. Given the alternative, it is worth shutting down the U.S. government to win that battle.