Inhofe Bill Addresses Flores and 'Credible Fear' Loopholes

It would also take criminal aliens off of the street

By Andrew R. Arthur on April 21, 2021

Much of the Biden administration’s response (or lack thereof) to the ongoing border crisis has been based on its assessment of “push factors” driving migrants to the United States. The “Asylum Abuse Reduction Act” (S. 863), introduced by Sen. Jim Inhofe (R-Okla.) on March 18, takes a more effective tack by addressing “pull factors” — and in particular loopholes in U.S. law — drawing those migrants to the United States. And it would help get criminal aliens off the streets, to boot.

To listen to the current administration, you would assume that illegal migration to the United States is inevitable because it is based on problems that are outside of our nation’s control. For example, in his March 16 “Statement Regarding the Situation at the Southwest Border”, DHS Secretary Alejandro Mayorkas asserted:

Poverty, high levels of violence, and corruption in Mexico and the Northern Triangle countries [El Salvador, Guatemala, and Honduras] have propelled migration to our southwest border for years. The adverse conditions have continued to deteriorate. Two damaging hurricanes that hit Honduras and swept through the region made the living conditions there even worse, causing more children and families to flee.

With respect to “poverty”, in an April 2 post, I detailed how wages in the United States compare to those in the four countries Mayorkas referenced. Long story short: You can make a lot more money here than you can there, even at the lowest wage levels.

In that post, I also explained that Biden’s plan to send $4 billion in aid to those Northern Triangle countries over four years would work out to $29 per person, per year, which would not do anything to address that wage gap. Only development would do that, but development is a years-long process.

Are there “high levels” of violence in those countries? Yes, but there are high levels of violence in certain parts of the United States, too, that the federal government can’t seem to do anything about.

My erstwhile hometown of Baltimore (population 575,584 and the closest major city to Washington, D.C.), for example, recorded 335 homicides in 2020, a rate of 58.2 murders per 100,000. That is 10.6 times the murder rate in the United States of five per 100,000.

Corruption? It’s a problem. Transparency International’s Transparency Perceptions Index ranks El Salvador as 104th out of 180 countries studied (the higher the number, the more corrupt the country is perceived to be), Mexico 124th, Guatemala 149th, and Honduras 157th.

By comparison, the United States is 25th, behind Bhutan (24th), Uruguay (21st) and the United Arab Emirates (21st; New Zealand is first). That shows there is corruption in the United States, and the federal government hasn’t been able to eliminate the problem here (which it should before looking abroad).

Two of the last five Baltimore mayors (Sheila Dixon and Catherine Pugh), for example, resigned amidst corruption scandals (Pugh was convicted on federal fraud charges, Dixon on a state embezzlement charge; one of those five, Jack Young, served out Pugh’s term).

Baltimore City Hall is 42 miles from the White House. If the administration cannot ensure a clean government in a city an hour away, what exactly will they do to address corruption in San Salvador, Guatemala City, Tegucigalpa, or Mexico City (and thousands of cities and towns in between)?

None of this is to say that the United States should not try to help its neighbors become more prosperous and safer, or to help them address corruption. It’s just to say that those efforts will take decades to be successful, assuming that they would ever be successful by any objective metric.

A much more expeditious response to the border crisis would be to respond to the gaps and flaws in U.S. law that draw migrants to this country to begin with. It is also the more humanitarian response, because migrants (and in particular migrant children brought by their parents) suffer greatly on the journey to the United States.

That is what Inhofe’s bill would do.

First, it would plug the “credible fear” loophole by requiring migrants who have entered illegally or who seek admission at the land ports of entry to apply for asylum at “the most convenient United States embassy or consulate in Canada or Mexico”.

Under current law, those aliens are subject to “expedited removal” from the United States, meaning that they can be quickly returned back home, unless (and it’s a big “unless”) they express a fear of harm if repatriated or request asylum.

If they assert they would be harmed or ask for asylum, those migrants are interviewed by an asylum officer from U.S. Citizenship and Immigration Services (USCIS) to determine whether there is a “significant possibility” that they would be eligible for asylum (“credible fear”). If they are determined to have a credible fear, they are placed into removal proceedings to apply for asylum.

Most aliens who claim harm or request asylum after they are encountered by CBP are found to have credible fear — 83 percent over a 12-year period from FY 2008 to FY 2019 — but fewer than 17 percent of those aliens were ultimately granted asylum.

More than 32.5 percent of them were ordered removed in absentia when they failed to appear in court, suggesting that they never really wanted anything more than to live and work in the United States.

Under the current expedited removal process, those aliens are supposed to be detained until their asylum claims are heard. Since January 2010, however, ICE’s policy has been to release almost all of them on “parole” to await their court hearings.

As I explained on April 3, however, once those aliens started being released, the number of migrants who claimed credible fear skyrocketed — increasing almost 1,900 percent between FY 2009 (before that ICE directive) and FY 2019. Simply put, migrants and their smugglers saw that loophole, and took it.

At this point, there are too many aliens claiming credible fear to put the genie back in the bottle by detaining them all. In March, for example, USCIS received 2,846 credible fear claims, more than half as many as it completed in all of FY 2009 (5,523), and almost four-and-a-half times as many as the agency completed in March 2009 (521).

Requiring migrants to apply for asylum at a nearby consulate, as the Inhofe bill would do, is the most logical solution at this point for reducing the number of migrants who would otherwise exploit the credible fear loophole. If migrants are deserving of asylum, we will protect them. If not, under that bill, we wouldn’t.

Second, the Inhofe bill would prevent aliens seeking asylum from “forum shopping”, by barring their claims if they passed through a third-country that grants asylum without applying for protection there.

It would provide exceptions for aliens who have unsuccessfully applied for asylum or Convention against Torture relief abroad, and for those who have been trafficked.

If aliens truly fear persecution or torture, they should apply for protection in the first safe country they come to — they should not transit those countries to seek refuge in the United States. Is this country wealthier than those other countries, and do we have better hospitals and schools? Generally, yes, but those are not the standards for protection.

Third, the Inhofe bill would plug the Flores loophole.

As I have explained many times in the past, in 1997, DOJ entered into a settlement agreement in Flores v. Reno to address complaints about the conditions of detention and terms of release of children in then-Immigration and Naturalization Service custody.

That agreement was “originally applicable only to unaccompanied children” (UACs), but in 2015, a district court judge held it applied to migrant children travelling with adults in “family units” (FMUs) as well, and required both the child’s and the accompanying adults’ release within 20 days.

The Obama administration appealed that decision, and in 2016, the Ninth Circuit held that Flores required the release of the children, but not any accompanying adult. To avoid “family separation”, however, the adults have generally been released, as well.

Not surprisingly, migrants and their smugglers found a new loophole in those decisions, and the number of migrants in FMUs apprehended entering illegally at the Southwest border increased more than 1,000 percent, going from 39,838 in FY 2015 to 473,682 in FY 2019.

The Trump administration attempted to plug that loophole in August 2019 by issuing regulations that would have replaced the Flores settlement agreement and allowed the detention of migrant children in family units. That regulatory change, however, was blocked by the same judge who issued the 2015 decision, in an opinion that was sustained, again, by the Ninth Circuit.

Even before those regulations were issued, however, in April 2019, a bipartisan federal panel tasked with reviewing the then-latest border crisis recommended that Congress “fix” Flores “by exempting children accompanied by a parent or relative, who is acting as the guardian of the child”.

The Inhofe bill would implement that recommendation by excluding from Flores aliens who are subject to mandatory detention (including under expedited removal).

Note that UACs are not subject generally to mandatory detention (most have their own special release rules), and so the proposed amendment would not affect them. It would remove accompanied children from Flores’ special release rules, however, and allow the government to detain family units without separating them.

Finally, the Inhofe bill would direct the appointment of federal district court or magistrate judges to issue criminal bench warrants against aliens subject to criminal penalties for willfully failing or refusing to depart the United States under final orders of removal.

At the end of FY 2019, ICE was looking for almost 600,000 such “fugitive” aliens who had “failed to leave the United States based upon a final order of removal, deportation or exclusion, or who ... failed to report to ICE after receiving notice to do so”. More recent numbers are not available, but the number almost definitely has not fallen since.

Each faces a felony sentence of between four and 10 years in jail, and the Inhofe bill would give each of them some serious incentives to avoid prison time by leaving the United States voluntarily. That, in turn, will free up limited ICE resources.

This amendment would also subvert efforts by so-called “sanctuary” jurisdictions to protect criminal aliens. Those states and localities usually will not respond to an ICE administrative arrest warrant, but they will sit up and pay attention when a federal judge issues a bench warrant for a criminal alien who has failed to leave under a final removal order in their respective custodies.

It will also protect other jurisdictions who want to assist ICE in removing criminal aliens under final orders of removal, but are concerned about lawsuits for doing so. Judicial criminal bench warrants would stymie any efforts by other activist judges to punish states and localities for helping ICE remove those criminal fugitives.

The Inhofe bill is a commonsense response that both addresses loopholes in the law that pull migrants to enter the United States illegally and responds to the hundreds of thousands of aliens who have received due process and been ordered removed from the United States. What are its odds of passage?

Commonsense seems to be an uncommon virtue in our nation’s capital of late, so right now, not good. If the border crisis devolves into a humanitarian disaster, however, the American people (who don’t think much of Biden’s handling of the border thus far) will clamber for an answer. And the senior senator from the Sooner State has one ready for them.