President Wants 'Asylum Only' Hearings for Credible Fear Claimants

Why wasn't this done earlier?

By Andrew R. Arthur on May 1, 2019

On April 29, 2019, the president issued a "Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System", which (among other things) calls on the secretary of Homeland Security, to: "propose regulations to ensure that aliens who receive positive fear determinations pursuant to section 235(b)(1) of the Immigration and Nationality Act (INA)" are placed in asylum-only proceedings or withholding-only proceedings, as the case may be. This is such a commonsense proposal, the only question is why no one thought of it before.

The regulations implementing jurisdiction over the asylum provisions in the INA currently permit certain categories of aliens to be placed into "asylum-only" proceedings. In particular, alien crewmembers refused permission to land, stowaways, applicants for admission and aliens admitted under the Visa Waiver Program (VWP), aliens inadmissible on security and related grounds (pursuant to section 235(c) of the INA), and certain aliens who are applicants for admission or who were admitted to Guam or the Commonwealth of the Northern Mariana Islands pursuant to the Guam-CNMI Visa Waiver Program may only seek relief from removal by applying for asylum.

Further, pursuant to those regulations, aliens who are the subject of a reinstated order of removal or who have been issued an administrative order of removal as an alien convicted of an aggravated felony may only seek relief from removal by applying for withholding of removal in "withholding-only proceedings".

The expedited-removal provisions in section 235(b) of the INA provide for credible-fear reviews. Specifically, section 235(b)(1)(B)(ii) of the INA states that if an asylum officer "determines at the time of the interview that an alien has credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum." The regulations implementing this provision, at 8 C.F.R. § 208.30(f), provide that if an alien is found to have a credible fear, the alien is to be placed into removal proceedings under section 240 of the INA (unless the alien is a stowaway and therefore subject to asylum-only proceedings).

Notwithstanding the fact that the credible-fear exception to expedited removal is intended only to allow the applicant to apply for asylum and/or withholding of removal, this regulation permits such an alien to apply for any form of immigration relief or to seek to have his or her removal proceedings terminated or closed.

There are two benefits (at least) of this proposal. First, if such regulations were adopted, there would be no need to have a separate master calendar hearing at which an immigration judge would take pleadings to the allegations contained in the Notice to Appear (NTA). This would preserve judicial resources, at least to some degree. Second, it would bar an alien from seeking a continuance in order to apply for some other form of relief, and to thereafter use the credible-fear process to obtain that relief.

Again, section 235(b)(1)(B)(ii) of the INA is fairly straightforward in that an alien found to have a credible fear is to be referred only for "consideration of the application for asylum". The regulation should never have been written so broadly to begin with. Given the current disaster unfolding at the border, it is beyond time for that regulation to be reconsidered and rewritten, to provide only for "asylum-only" proceedings for aliens found to have credible fear.