Synopsis of the Mass Migration Presidential Proclamation and Asylum Interim Final Rule

By Andrew R. Arthur on November 9, 2018

On November 9, 2018, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) adopted an interim final rule that bars aliens from receiving asylum if they are subject to a presidential proclamation suspending or limiting entry into the United States across the Mexican border.

That day, the White House issued a Presidential Proclamation Addressing Mass Migration through the Southern Border of the United States. It suspends and limits entry into the United States by aliens who enter after that date illegally, between the ports of entry. The purpose of the proclamation is to channel aliens without entry documents seeking asylum to the ports of entry.

  • The presidential proclamation does not apply to any alien who entered illegally before the date of the proclamation, and does not apply to unaccompanied alien children (UACs).
  • The proclamation does not bar aliens from applying for withholding of removal or protection under the Convention Against Torture (CAT).
  • Withholding of removal is like asylum, only the burden of proof on the applicant is higher.
  • CAT prevents the United States from returning an alien to a country where that alien will be tortured.
  • The proclamation will take effect at 12:01 a.m. on November 10. It will expire in 90 days, or when a safe-third-country agreement is reached with Mexico by which third-country nationals who cross the Southwest border will be returned to that country to apply for asylum, whichever is earlier.
  • Within 90 days of the proclamation, the secretary of State, the attorney general, and the secretary of Homeland Security must submit a recommendation to the president on whether the suspension or limitation on entry in that proclamation should be extended or renewed.

Under section 235(b) of the Immigration and Nationality Act (INA), aliens who are inadmissible because of fraud or because they do not have proper entry documents are subject to expedited removal. This means that they can be removed without appearing before an immigration judge. It applies to aliens who are inadmissible at the ports of entry, as well as those who have entered illegally.

  • In FY 2018, 234,534 aliens were subject to expedited removal. This is a 45 percent increase over FY 2008.
  • The number of aliens from the Northern Triangle of Central America (NTCA) countries of El Salvador, Honduras, and Guatemala who were subject to expedited removal has increased from 29,206 in FY 2008 (18 percent of the total) to 103,752 in FY 2018 (44 percent of the total). By comparison, Mexican nationals represented 39 percent of the aliens in expedited removal in FY 2018 (91,235).

Aliens subject to expedited removal who claim a fear of persecution, however, are referred for "credible fear" interviews by asylum officers. Credible fear in this context is defined 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 [asylum] officer, that the alien could establish eligibility for asylum under section 208" of the INA.

  • In FY 2018, 41 percent of all aliens in expedited removal (97,192) were referred for a credible fear interview with an asylum officer.
  • Of that number, the majority were from the NTCA countries. Specifically, 25,673 were Honduran (26 percent), 13,433 were Salvadoran (14 percent), and 24,456 were Guatemalan (25 percent).
  • Approximately 61 percent of aliens from the NTCA countries in expedited removal proceedings were given credible fear interviews.
  • By contrast, only 8 percent of Mexican nationals were given credible fear interviews.
  • Of the 97,192 aliens interviewed in credible fear proceedings in FY 2018, 83,862 had their cases decided on the merits, and the rest were closed. Asylum officers found credible fear in the vast majority of the decided cases: 89 percent (74,534). This is an increase over FY 2008, when about 3,200 credible fear findings were made (77 percent of all cases), and over FY 2014, when about 35,000 credible fear findings were made (80 percent of all cases).
  • Similarly, aliens from NTCA countries received a positive credible fear determination 89 percent of the time.

If an alien is found to have a credible fear by an asylum officer, the alien is referred to removal proceedings before an immigration judge to apply for asylum.

  • Credible fear referrals have increased 190 percent since FY 2014 and 2,000 percent since FY 2008.
  • Once aliens are referred to removal proceedings, cases may take months or years to adjudicate due to backlogs in the immigration-court system.
  • Of the total backlog of 791,821 removal cases, 26 percent (203,569) originated with a credible-fear referral.
  • Of that number, 136,554 involved NTCA nationals. Only 10,736 involved Mexican nationals.
  • In FY 2018, of the 34,158 immigration-court completions that originated with a credible-fear referral, 24,361 (71 percent) were orders of removal.
  • Of that number, 10,534 were in absentia orders of removal, meaning that the alien failed to appear. Therefore, in 31 percent of all initial completions in immigration court in FY 2018 that originated from credible-fear referrals, the alien failed to appear.
  • Only 1,981 asylum applications were actually filed in those 10,534 in-absentia cases. This means that 8,553 aliens who were referred after credible fear proceedings to the immigration court to apply for asylum did not apply for asylum, and did not show up in court.
  • All told, in 40 percent of all immigration-court completions in FY 2018 originating with a credible-fear referral (13,595 cases), no asylum applications were filed.
  • From FY 2008 through FY 2018, only 53 percent of all aliens referred after credible-fear review to immigration court filed an asylum application, despite the fact that such applications were the purpose of the referrals.
  • Further, only a very small percentage of aliens referred after credible-fear proceedings who applied for asylum were granted asylum. Specifically, in FY 2018, of 20,563 referral cases in which asylum was applied for, immigration judges granted asylum in only 5,639. In other words, in the last fiscal year, asylum was granted in only 17 percent of all completed referred cases, 27 percent of all completed referred cases in which an asylum application was filed, and 36 percent of completed referred cases where an asylum claim was adjudicated on the merits.
  • For nationals of NTCA countries, only 54 percent filed an asylum application in immigration court, while 38 percent of credible-fear referrals failed to appear and were ordered removed in absentia. In other words, only a little over half of the NTCA nationals who passed credible fear submitted an application for asylum, and more than a third failed to appear for removal.
  • Only 1,889 nationals from the NTCA were granted asylum in FY 2018, 9 percent of all referred completed cases, 17 percent of referred completed cases in which an asylum application was filed, and 23 percent of cases where those aliens' claims were adjudicated on the merits.
  • These statistics show that the current credible fear process is being abused and is not working.

In essence, the interim final rule bars aliens who enter illegally between the ports of entry from being found eligible for credible fear.

  • This will channel aliens claiming credible fear to the ports of entry. This, in turn, will preserve U.S. Customs and Border Protection (CBP) resources, because Border Patrol Agents (BPAs) must be pulled off the line to process aliens who are detained after entering illegally.
  • It will also allow CBP to process those applications in an orderly fashion. Aliens claiming credible fear will have an incentive to be processed through the ports of entry. Once processed, those who claim fear will be detained for credible-fear proceedings.
  • This action will also encourage aliens to apply for asylum in safe third countries, like Mexico.
  • Finally, it should reduce the backlog in immigration court by reducing the number of claims made by aliens who enter illegally. Under the current system, if an alien is able to enter the United States without apprehension, the alien is able to live in the United States illegally. If the alien is apprehended, however, the alien can always making a credible fear claim. The interim final rule and the proclamation will prevent that from occurring.