Stop the Presses: Biden Administration to Partially Enforce the Law at the Border

“Certain family units” will be subject to expedited removal; here’s what that likely means, and why

By Andrew R. Arthur on July 28, 2021

In a late-evening press release on July 26, DHS announced that it would be placing “certain family units” (FMUs, adult migrants travelling with children) whom it cannot expel under Trump-era Title 42 orders into expedited removal proceedings. Stop the presses, because the Biden administration will actually “kind of” start enforcing the law at the border, but there is both more and less here than meets the eye.

First, some brief background.

Under section 235(b)(1) of the Immigration and Nationality Act (INA), aliens arriving in the United States with fraudulent documents or no documents at all (including aliens who enter illegally) are subject to “expedited removal”. That means that they can be quickly removed from the United States by DHS, without being ordered removed by an immigration judge (IJ).

There is an exception, however, for aliens who claim a fear of harm if they are sent home. Those aliens must be interviewed by an asylum officer to determine whether they have a “credible fear” of persecution.

Credible fear is essentially a screen to determine whether an alien may be eligible for asylum. Because the credible fear standards are so low, 83 percent of aliens in expedited removal who claimed harm between FY 2008 and FY 2019 received a “positive credible fear determination”, which took them out of the expedited removal line and allowed them to seek asylum from an IJ.

By law, aliens in expedited removal are supposed to be detained until they are removed, and DHS is supposed to detain even aliens who have received a positive credible fear determination until an IJ can rule on their asylum claims.

Detention is the law for those aliens, and was the practice until December 2009, when Obama’s ICE Director, John Morton, issued a directive that aliens who had received a positive credible fear assessment should generally be released into the interior of the United States on parole.

Smugglers quickly exploited this loophole, and the number of illegal migrants claiming credible fear went from just under 5,200 in FY 2009 (before the Morton directive) to more than 100,000 in FY 2019— an almost 2000-percent increase in just a decade.

Then, there is Flores. It is a settlement agreement entered into by DOJ in 1997, which originally governed the conditions of detention of alien children by the former Immigration and Naturalization Service (INS), and their release. It requires that those children be detained only in “licensed” facilities.

Until 2015, Flores had been presumed to apply only to “unaccompanied alien children” travelling alone, not children with their parents in family units. That year, one district court judge changed all of that, in response to a migrant crisis that had occurred the year before.

In FY 2014, the Obama administration was faced with a surge of illegal migrants in family units. In response, and (as alleged by immigrant advocates) in order to deter other FMUs from making the dangerous trek to the United States, it began holding those adults and children in unlicensed facilities-- including military bases.

The Flores plaintiffs then went to federal district court Judge Dolly Gee, who oversees the Flores settlement agreement, to block such detention. In August 2015, she issued an order that limited the detention of children in FMUs to 20 days, and also ordered that any accompanying adults be released, as well.

The Obama DOJ appealed that decision to the Ninth Circuit. In 2016, the circuit court struck down the release requirement for adults but sustained the 20-day release requirement (which Judge Gee had crafted out of whole cloth) for children. To avoid “family separation”, the parents were usually released, too.

Not surprisingly, the number of aliens travelling in family units skyrocketed as foreign nationals (and more importantly, smugglers) realized that entering illegally with a child was a ticket to a quick release.

In FY 2015, Border Patrol apprehended just over 40,000 migrants at the Southwest border travelling in family units. By FY 2018, total FMU apprehensions reached more than 107,000, and then increased more than 400 percent the next year, to 473,000 in FY 2019.

Then-DHS Secretary Kirstjen Nielsen declared a “border emergency” in March 2019 largely because the department lacked the resources to handle and process such a large number of family units safely and humanely.

If you are wondering why DHS under Nielsen instituted such policies as the Migrant Protection Protocols (MPP, also known as “Remain in Mexico”), under which migrants entering illegally were sent back across the border to await asylum hearings, it was to dissuade illegal migrants—and in particular migrant family units—from entering.

The Biden administration quickly scrapped MPP and other Trump administration policies that discouraged illegal entry (which is the reason the border is in chaos today), but it has kept the CDC’s Title 42 orders—which were issued in response to the COVID pandemic—in place.

Those Title 42 orders allow DHS to expel illegal migrants, including migrant family units, back across the border.

The problem is that Mexico must agree to take non-Mexican migrants back. As the New York Times reported on July 26, however, “the governments of some Mexican border states have refused to accept families with young children or those who have traveled from countries outside Central America, such as Brazil, Ecuador, India and Venezuela”.

Consequently, of the more than 50,000 migrants in family units that were apprehended by Border Patrol at the Southwest border in June, fewer than 8,100 were expelled under Title 42.

Politically, the border is a problem for Biden and for those congressional Democrats who will be up for reelection in midterm elections next year.

Pictures of migrant families who died en route to the United States tanked Trump’s approval ratings in 2019. An onslaught of migrant parents and children travelling to the United States runs the significant and tragic risk that such scenes would be replicated today.

Even if there are no further deaths, however, images of tens of thousands of migrant families simply being released into the United States will just reinforce the low opinion that the electorate has of Biden’s performance on immigration.

Given that, it makes sense that the administration would fall back on enforcing the law to discourage new illegal migrants. As the New York Times article reflects, it will take heat for that decision from immigrant advocates, but Joe Biden will need more votes than theirs to avoid a Democratic wipeout in 2022.

Then, there is the litigation risk that the Biden team runs if it doesn’t reinstate expedited removal for migrant families.

On July 2, I analyzed a complaint that has been filed in federal district court in Texas by a group of sheriffs and an organization that represents ICE officers. It seeks an injunction to force the Biden administration to enforce certain provisions in the INA.

One of the causes of action in that complaint is that the Biden administration is not detaining and initiating removal proceedings for migrants who have entered illegally, which is required under section 235(b)(2)(A) of the INA. The complaint does not reference expedited removal.

Basically, when Border Patrol apprehends any migrant who has entered illegally, it has two choices: It can process the alien for expedited removal, or it can place the alien into regular removal proceedings before an IJ.

The difference is whether the alien is charged solely with entering illegally (triggering removal) or alternatively, with not having proper documents (a prerequisite for expedited removal).

If the Biden administration goes the expedited removal route, it can fall back on Judge Gee’s Flores order as a reason to release those family units. If it doesn’t, however, it runs the risk that the judge in Texas will order their detention (no district court judge’s decision binds another, usually).

Finally, I can think of one additional reason why the Biden administration – which thus far has actively blocked most immigration enforcement – would have announced that it will place family units into expedited removal: that is to give asylum officers in USCIS the ability to grant those aliens asylum.

Currently by regulation, asylum officers can only adjudicate credible fear claims; they cannot subsequently grant those aliens asylum.

As I reported in April, however, the Biden administration is purportedly considering giving asylum officers the ability to grant asylum, too—which would allow those aliens to remain permanently and put them on a fast track to a green card.

That April post explains all of the problems with this plan, not least of which is the fact that it would overwhelm the limited asylum officer corps, plus give aliens a “second bite at the apple” as they could still appeal an asylum denial to an IJ. But, I understand that the president’s concerns and mine are two very different things.

Implementing expedited removal for a “sympathetic” group of migrants such as immigrant families would give the administration a springboard to launch that effort. That “asylum officer plan” would still require a regulatory change, but if the applicants were families, it would likely tamp down many complaints.

The DHS press release announcing that it would resume expedited removal proceedings for “certain family units” who cannot be expelled under Title 42 is brief. It does not explain which families would be affected, or even explain why the Biden administration made the switch now. While that decision will comply with the law to some extent, there is likely both more and less to that announcement than it appears.