As I noted my last post, on July 16, 2019, the United States Department of Justice (DOJ), Executive Office for Immigration Review (EOIR), and Department of Homeland Security (DHS) issued an interim final rule (IFR) with request for comment announcing a third-country-transit eligibility bar to asylum. That IFR contains some very interesting numbers that quantify the scope of the disaster that has been unfolding over the last few months on the border, the reasons for that disaster, and its effects on our immigration system.
Expedited Removal and Credible Fear
- "[A]pproximately 234,534 aliens in FY 2018 who presented at a port of entry or were apprehended at the border were referred to expedited-removal proceedings."
- In FY 2018, U.S. Citizenship and Immigration Services (USCIS) received 99,035 credible-fear claims from aliens subject to expedited removal, a 175-percent increase from five years earlier and a 1,883-percent increase from ten years earlier.
- In the first four months of FY 2019, USCIS received more than 35,000 credible-fear claims. If that trend continues, the agency could receive 105,000 credible-fear claims this year.
- The total number of aliens referred by DHS for credible-fear screening increased from fewer than 5,000 in FY 2008 to, as noted, more than 99,000 in FY 2018. Over the past decade, the overall percentage of aliens who were subject to expedited removal and who were referred for a credible-fear interview by DHS jumped from approximately five percent to more than 40 percent.
- In FY 2018, DHS asylum officers found over 75 percent of the aliens who they interviewed to have a credible fear of persecution or torture. Those aliens were placed in removal proceedings to file an asylum application in immigration court. Immigration judges overturn approximately 20 percent of the negative credible-fear determinations made by asylum officers (an additional five percent of the total credible fear claims), finding those aliens also to have a credible fear. This means that 80 percent of aliens who were interviewed for credible fear received a positive credible-fear finding.
- Despite the fact that aliens who received a positive credible-fear finding were placed in removal proceedings in order to apply for asylum, from FY 2016 through FY 2018, approximately 40 percent of aliens who received a positive determination have failed to file an asylum application.
- According to EOIR, among aliens who received a positive credible-fear determination between FY 2016 and FY 2018, only 12,062 aliens—an average of 4,021 per year—were granted asylum. This figure represents just 14 percent of all completed asylum cases, and about 36 percent of asylum cases decided on the merits. In other words, 86 percent of the aliens who have received positive credible fear referrals but whose cases have been decided were not granted asylum.
- "Recent initiatives to track family unit [FMU] cases revealed that close to 82 percent of completed cases have resulted in an in absentia order of removal."
The IFR explains:
The many cases that lack merit occupy a large portion of limited docket time and absorb scarce government resources, exacerbating the immigration-court backlog and diverting attention from other meritorious cases. Indeed, despite DOJ deploying the largest number of immigration judges in history and completing historic numbers of cases, a significant backlog remains. There are more than 900,000 pending cases in immigration courts, at least 436,000 of which include an asylum application [Emphasis added].
- In the past, aliens coming unlawfully to the United States along the Southwest border were predominantly single adult males from Mexico, who usually were removed or voluntarily departed this country within 48 hours, if they had no claim to remain in the United States. As of January 2019, more than 60 percent of aliens coming unlawfully to the United States are FMUs and unaccompanied alien children (UAC). Some 60 percent are other than Mexican nationals (OTMs).
- In FY 2017, U.S. Customs and Border Protection (CBP) apprehended 94,285 FMUs units from the Northern Triangle countries of El Salvador, Guatemala, and Honduras at the Southwest border. Of those family units, 99 percent were still in the United States as of January 2019.
- The number of OTMs apprehended along the Southwest border has increased significantly in the past two years:
- In May FY 2017, the Department of Homeland Security (DHS) recorded 7,108 enforcement actions (that is, actions that were "taken by [U.S. Immigration and Customs Enforcement (ICE)] or CBP to apprehend, arrest, interview, or search an individual, or to surveil an individual for enforcement purposes") involving OTMs along the Southwest border, approximately 36 percent of all enforcement actions along that border. The number of enforcement actions in FY 2017 involving OTMs along the Southwest border was 233,411.
- In May FY 2018, DHS recorded 32,477 enforcement actions with OTMs along the Southwest border, which represented about 63 percent of the enforcement actions along the border that month. The number of enforcement actions in FY 2018 involving OTMs along the Southwest border increased to 298,503.
- By May in FY 2019, DHS recorded 121,151 enforcement actions with OTMs along the Southwest Border, a figure that represented approximately 84 percent of enforcement actions along the border. In the first eight months of FY 2019, through May of this year, the number of enforcement actions involving OTMs along the Southwest border had already increased to 524,446.
- "Accordingly, the number of enforcement actions involving [OTMs] increased by more than 1,600 percent from May FY 2017 to May FY 2019."
The massive increase in aliens claiming credible fear, coupled with the low asylum-grant rate for aliens who have received a positive credible-fear finding (and in particular the large number of aliens who fail to appear for court or file an asylum application after a positive credible-fear finding) suggests that many, if not most of the aliens who enter the United States illegally to claim credible fear are really economic migrants.
This is consistent with the conclusion in the IFR that:
Many of the aliens who wait to seek asylum until they arrive in the United States transit through not just one country, but multiple countries in which they may seek humanitarian protection. Yet they do not avail themselves of that option despite their claims of fear of persecution or torture in their home country. Under these circumstances, it is reasonable to question whether the aliens genuinely fear persecution or torture, or are simply economic migrants seeking to exploit our overburdened immigration system by filing a meritless asylum claim as a way of entering, remaining, and legally obtaining employment in the United States.
For those who have a legitimate fear, however, the low asylum-grant rate indicates that they do not have claims that would make them eligible for asylum in the United States. As I have previously explained, the requirements to receive asylum in the United States are strict:
An applicant for asylum has the burden to demonstrate that he or she is eligible for that protection. To satisfy that burden, the applicant must prove that he or she is a refugee. A "refugee" is a person outside of his or her country of nationality or habitual residence who is "unable or unwilling" to return to 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."
This definition tracks the definition of refugee in the 1951 Refugee Convention and its 1967 Protocol.
Those OTMs with claims of fear that do not satisfy this standard would be better off, legally, applying for protection in Mexico. As my former colleague, Kausha Luna, described that country's policies in June 2018:
Mexico signed the 1951 Refugee Convention and its 1967 Protocol in 2000. In addition, Mexico is party to the 1984 Cartagena Declaration on Refugees. The 1984 declaration goes beyond the definition of "refugee" that appears in the 1951 Geneva Convention. Per the 1951 Geneva Convention a refugee is an individual who,
[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
The Cartagena Declaration expands the definition of refugee to include:
persons who have fled their countries because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
Again, their failure to apply for asylum under the more lenient standard for that protection in Mexico raises the question of whether many of those OTMs who claim credible fear are simply making an economic choice to exploit the humanitarian benefits of the United States to live and work in this country.
The massive increase in the number of OTMs and FMUs entering the United States illegally or who are apprehended at the ports of entry suggests that those aliens are exploiting those protections and other loopholes in U.S. immigration law, including the current iteration of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) and the Flores settlement agreement, which I analyzed in a May 2018 backgrounder. Those laws favor the release of OTM UACs and FMUs.
With respect to the former provision, I explained:
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".
With respect to the Flores settlement agreement and the manner in which it intensifies the current crisis at the Southwest border, as the bipartisan Homeland Security Advisory Council's CBP Families and Children Care Panel explained in its April 16, 2019, "Final Emergency Interim Report”:
After being held for several days at inadequate and overcrowded holding areas at [U.S. Border Patrol (USBP)] stations, most of the adults — provided they have a child with them and have stated that they fear returning to their country of origin — are issued Notices to Appear (NTA) at a later time before an immigration judge somewhere in the U.S. and then dropped at a local bus station or delivered to already overwhelmed non-profit shelters. The NTA, combined with long delays in the adjudication of asylum claims, means that these migrants are guaranteed several years of living (and in most cases working) in the U.S. Even if the asylum hearing and appeals ultimately go against the migrant, he or she still has the practical option of simply remaining in the U.S. illegally, where the odds of being caught and removed remain very low. A consequence of this broken system, driven by grossly inadequate detention space for family units and a shortage of transportation resources, is a massive increase in illegal crossings of our borders, almost entirely driven by the increase in FMU migration from Central America.
By far, the major "pull factor" is the current practice of releasing with a NTA most illegal migrants who bring a child with them. The crisis is further exacerbated by a 2017 federal court order in Flores v. DHS expanding to FMUs a 20-day release requirement contained in a 1997 consent decree, originally applicable only to unaccompanied children (UAC). After being given NTAs, we estimate that 15% or less of FMU will likely be granted asylum. The current time to process an asylum claim for anyone who is not detained is over two years, not counting appeals [Emphasis added].
The situation at the Southwest border is bad and getting worse, as the figures in the IFR demonstrate. It is not only an issue for our overburdened immigration courts, and DHS employees and resources, but it also imposes a tragic toll on the migrants themselves, who are subject to abuse and exploitation on the way to the United States (as I noted in my last post).
Notwithstanding these facts, Congress has failed to act to plug the loopholes that are being exploited by smugglers and migrants alike. Instead, it simply holds hearings purporting to examine how the administration has acted "inhumanely" with respect to the flood of migrants with which it must contend, or its members send out sanctimonious tweets exploiting the human tragedy that is occurring on its watch and largely because of its inaction. As a former staffer, I can assure you that legislating is hard. The figures in the IFR demonstrate, however, that it is necessary, now more than ever.