I Was Wrong About the ‘Good’ in the Senate Border Bill — It Won’t Curb Asylum Abuses

Shame on whoever told the Senate it would, but shame on senators if they repeat that claim

By Andrew R. Arthur on February 14, 2024

My February 5 post — issued the day after three Senate negotiators released the text of their long-awaited bill trading war funding for Ukraine for claimed border reforms — was captioned “The Good — and a Lot of Bad — in the Senate Border ‘Deal’”. I now realize I was wrong about the “good” — a change that purported to raise the “credible fear” standard for border migrants claiming asylum — because that change is illusory. In my defense, however, that amendment is meticulously crafted to look like a critical fix. DHS’s fingerprints are all over the text, and those credulous senators probably had no idea how much they would rely on the goodwill of the head of that department, recently impeached DHS Secretary Alejandro Mayorkas, to make any change at all.

Expedited Removal and Credible Fear. To explain, I first must go back to 1996, when Congress overhauled section 235 of the Immigration and Nationality Act (INA) to change the way border and port officials inspect newly arrived aliens.

Prior to those amendments, aliens seeking admission to the country at ports of entry received fewer rights than aliens who simply crossed illegally. In fact, aliens found directly after they had “jumped the line” weren’t inspected at all — they went directly to immigration court.

In addition, prior to 1996, port officers were required to detain aliens denied admission pending exclusion hearings (and had been the case since 1903), while Border Patrol could release illegal crossers who refused to voluntarily return while they were awaiting their deportation hearings.

Congress in 1996 eliminated that “exclusion/deportation” dichotomy and created a process under which both aliens deemed inadmissible at the ports and those apprehended directly after entering illegally were both subject to the same inspection protocol — and detained until their right to enter the country could be sorted out.

Most critically, Congress decided there was no reason for border and port officials to obtain an order from an immigration court before removing aliens who presented fraudulent documents or who offered no documents at all during inspection (including illegal entrants), so it amended section 235(b)(1) of the INA to create “expedited removal”.

Expedited removal gives DHS itself authority to issue removal orders to those “undocumented” arriving aliens. That quick removal process, however, comes with a “catch”. Section 235(b)(1)(A)(ii) of the INA requires CBP to refer aliens subject to expedited removal who claim a fear of harm if returned to asylum officers (AOs) at USCIS, for what is known as a “credible fear” interview.

“Credible fear” is defined in section 235(b)(1)(B)(v) of the INA as “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” that an alien subject to expedited removal “could establish eligibility for asylum under section 208” of the INA. (Emphasis added.)

If those AOs make “positive credible fear determinations”, they can either refer the aliens to removal proceedings before IJs, or under (flawed) regulations implemented by the Biden administration in March 2022, the AOs can keep the cases and adjudicate the asylum applications themselves. Section 235(b)(1) also allows aliens who receive a “negative credible fear determination” to seek IJ review of that decision.

As an important aside, the Senate bill would codify that faulty regulatory “Asylum Officer Rule” (which is currently being challenged by a group of states in federal court) into statute and require DHS to release all aliens whose asylum cases were retained by AOs.

“Well-Founded Fear”. Returning to the language of the credible fear definition, the term “could establish eligibility for asylum” is key to both the current credible fear process and to the proposed amendments to that process in the Senate bill, but explaining what that term means requires a few steps.

Section 208 is the asylum statute in the INA, and clause (b)(1)(B)(i) therein states: “The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) of the INA”. (Emphasis added.) Section 101(a)(42)(A) of the INA, in turn, defines the term “refugee” as an alien:

who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. [Emphasis added.]

Therefore, to be granted asylum, aliens must prove either that they’ve been persecuted, or they have a “well-founded fear of persecution”, on account of one or more of those five statutory “factors”: race, religion, nationality, membership in a particular social group, or political opinion. Poverty and crime don’t count.

To establish past persecution, applicants must show by a preponderance of the evidence (i.e., that it’s “more likely than not”) that they were persecuted in the past, but what’s “a well-founded fear of persecution” and how does an applicant prove that harm could occur in the future?

As the Ninth Circuit has explained:

Where ... a person has not demonstrated past persecution, he or she may still show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. ... A well-founded fear does not require certainty of persecution or even a probability of persecution. Even a ten percent chance of persecution may establish a well-founded fear. [Emphasis added; internal citations and punctuation omitted.]

The Senate Amendment. If that sounds convoluted, it is. Under the current statute, aliens can receive a positive credible fear determination by proving a “significant possibility” that they “could establish that there is a 10 percent chance that they may be persecuted if returned” — that is by offering proof even less persuasive than that 10-percent threshold.

That’s not a high bar for aliens facing expedited removal to clear, which is part of the reason why 83 percent of aliens subject to expedited removal who claimed a fear of harm between FY 2008 and FY 2019 received positive credible fear determinations from either AOs (81 percent) or IJs on review (2 percent), even though only 14 percent of them ultimately received asylum.

As I’ve explained in the past, however, that low credible-fear bar isn’t the only reason why 83 percent of aliens subject to expedited removal received positive credible fear determinations. USCIS’s internal review process for negative determinations also stacks the deck in favor of AOs finding credible fear — a key point in this analysis.

Section 3202 of the Senate bill would amend the current credible fear definition in two ways. First, it would require AOs in that credible-fear review process to consider whether applicants could safely relocate within their own countries instead of coming to the United States and also to apply the current bars to asylum — for criminal and terrorist aliens, for example — to that process.

That’s an improvement over the current definition, but it’s largely cosmetic. Biden’s DHS could make those changes already (it hasn’t), but more importantly the credible fear interview process is meant to be so perfunctory, it’s doubtful AOs would bar many claims on those grounds.

Second, however, section 3202 of the bill would change the credible fear standard — again, “a significant possibility” that an alien “could establish eligibility for asylum” — to “a reasonable possibility” the alien could make such a showing. Admittedly, that change is where I got hung up in my initial analysis.

The Pundit Stumbles. To explain how I got conned by this legislative legerdemain, you must first understand that expedited removal only applies to aliens who haven’t been previously removed from the United States. Congress gave DHS the authority, in section 241(a)(5) of the INA, to reinstate previously issued removal orders without sending those aliens back to immigration court for a new removal order.

In the case of illegal border migrants, that allows CBP to bypass even expedited removal and move straight to deportation.

Those aliens aren’t eligible for asylum unless their original orders of removal are reopened, so Congress never created an asylum-screening system comparable to credible fear for them. But they are eligible for withholding of removal under section 241(b)(3) of the INA (statutory withholding) and for protection under Article 3 of the Convention Against Torture (CAT).

Statutory withholding is similar to asylum, except unlike asylum — which places an asylee on a pathway to a green card and citizenship — statutory withholding only gives a recipient the right to live and work in this country indefinitely.

There’s another key difference between asylum and statutory withholding that’s crucial to understanding what the Senate bill would and wouldn’t do: The burden of proof on the alien for statutory withholding is higher. To be granted statutory withholding, applicants must show it’s more likely than not they’ll be persecuted in the future; a “well-founded fear” isn’t enough.

Again, Congress never implemented a “statutory withholding screening process” comparable to credible fear for border migrants whose prior removal orders were reinstated, so the Clinton administration took it upon itself to create one by regulation, known as “reasonable fear”.

By regulation, an illegal migrant with a reinstated order of removal will be found to have a reasonable fear of persecution if the alien “establishes a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion”. (Emphasis added.)

The Ninth Circuit defines a “reasonable possibility" of persecution as “a ten percent chance that the [alien] will be persecuted ... if returned to his or her home country”. Notably, that’s the same “well-founded fear” showing required for an alien seeking asylum.

That makes sense, because if “credible fear” requires something less than asylum, “reasonable fear” should require something less than statutory withholding, and asylum adjudicators are familiar with the “well-founded fear” standard.

The Senate negotiators likely thought that by changing the modifying adjective in the credible fear definition from “a significant possibility” to “a reasonable possibility” — which section 3202 does — they were adopting that regulatory “reasonable fear” definition for aliens claiming credible fear.

That is, they probably believed they were raising the credible fear bar to require illegal border migrants in expedited removal to prove that they were eligible for asylum under the section 208 definition in order to receive a positive credible fear determination. That’s what I thought, at both first and second blush, and where I stumbled.

That’s not what section 3202 in the Senate bill actually does, because it doesn’t modify the whole statutory credible fear definition to match the reasonable fear regulation. The regulation requires the alien to show a well-founded fear of persecution on account of one or more of the five asylum factors; the Senate bill just swaps out one undefined adjective (“significant”) for another (“reasonable”).

Here’s how the credible fear definition reads under the Senate bill: “the term ‘credible fear of persecution’ means that there is a significant reasonable possibility ... that the alien could establish eligibility for asylum under section 208 of” the INA.

Not a reasonable possibility that the alien would be persecuted, but a reasonable possibility that the alien could establish eligibility for asylum, that is, something less than the already low “well-founded fear” standard. Logically, it’s a “well-founded fear that the alien has a well-founded fear”. Multiplying two decimals together — a 10 percent chance of a 10 percent chance — yields a lower number, or in this case, a lower burden.

The Senate bill could have raised the “credible fear” standard — blamed by many as the loophole allowing illegal migrants’ to abuse our asylum system — by calling it “reasonable fear” and limiting it to aliens who prove they have been persecuted or have a well-founded fear of persecution. That’s not what it did, however; it simply swapped one adjective for another, and thus left “credible fear” open to abuse.

DHS. In much the same way I don’t blame myself for not realizing I’d been suckered in my initial readings of this bill, I don’t fault the three Senate negotiators — Sens. James Lankford (R-Okla.), Krysten Sinema (I-Ariz.), or Chris Murphy (D-Conn.) — for this statutory change or for thinking that this amendment makes any difference. None is a skilled immigration expert, which interpretation of this language requires.

Reports indicate, however, that DHS Secretary Alejandro Mayorkas was “actively involved in the Senate border negotiations”, and he certainly knows that this purportedly game-changing amendment is just a bunch of hooey. Prior to becoming secretary, he was the deputy DHS secretary and the head of USCIS under President Obama. He understands “credible fear”, “reasonable fear”, and all of the flaws in each.

He’d draft the regulations that would implement any change to the credible fear standard and, as importantly, write the guidance for the AOs who would apply it. Perhaps he’d raise the bar, though I doubt much would change — as explained, both the current credible fear standard and the Senate amendment require an alien to show something less than the already low burden required for asylum.

Would the current language be considered a 30 percent likelihood that an alien would ultimately receive asylum, and the amendment be a 35 or 40 percent likelihood? That’s more art than science, and adjudicators don’t pull out slide rules to make such determinations.

More importantly, however, Mayorkas and the department he leads have shown that they can’t be trusted to implement such legislative changes when it comes to credible fear.

As I’ve explained elsewhere, Congress did something similar when it raised the parole standard in 1996 by adding new adjectives to the statutory justifications for that action — swapping “urgent humanitarian reasons” for “emergent reasons” and “significant public benefit” for “reasons deemed strictly in the public interest” — but the Clinton administration never amended the regulation to reflect those changes.

That’s on Clinton’s DOJ, but Mayorkas’ DHS in the March 2022 AO rule described above then applied that same, unamended, pre-1996 regulatory parole standard to — get this — aliens awaiting credible fear determinations. Worse, they struck a regulation that did comply with the 1996 parole changes to do it.

“Fool me once, shame on you. Fool me twice, shame on me.” Shame on whoever convinced the Senate negotiators that changing the credible fear standard from a “significant possibility” to a “reasonable” one would curb migrant asylum abuses; it won’t. But shame on those senators if they continue to claim their amendment would have curbed migrant asylum abuses.