In a March 17 post, I explained how the Trump administration had actually bolstered, not "dismantled" the U.S. asylum system, contradicting then-recent statements by DHS Secretary Alejandro Mayorkas. That same day, CNN fact-checked Mayorkas's statements as related to asylum, and found that they were "fair enough". The facts back me up, and the network is, by and large, wrong.
Here is Mayorkas's quote:
The prior administration completely dismantled the asylum system. The system was gutted, facilities were closed, and they cruelly expelled young children into the hands of traffickers. We have had to rebuild the entire system, including the policies and procedures required to administer the asylum laws that Congress passed long ago.
Note that Mayorkas's statements were not off-hand comments at a press conference, but a written statement, which means that it was fly-specked by an untold number of executive-branch "experts" before it saw the light of day.
As I reported in my March 17 post, the Trump administration actually boosted the number of immigration judges (IJs) by 83 percent, and that bolstered IJ corps granted asylum to more aliens every year under Trump than had been granted in any year under the previous, Obama-Biden, administration.
Further, in October 2019, Government Executive reported that U.S. Citizenship and Immigration Services (USCIS) — the DHS agency that adjudicates "credible fear" claims by aliens seeking asylum at the border and "affirmative asylum" applications by aliens in the interior seeking protection — was "on pace to hire 500 new employees in its asylum directorate by the end of 2019".
Half of those new hires were asylum officers (AOs), that is, the USCIS employees who actually adjudicate credible fear and affirmative asylum claims. As Government Executive explained: "Over the past two years, USCIS has averaged between 500-550 asylum officers. ... That would mark a 50% increase for the highly specialized workforce in just a one-year period."
In FY 2016 (under the Obama-Biden administration) AOs completed 31,400 applications for asylum and statutory withholding (I-589s). By FY 2018, that number had increased 161 percent, to 82,000.
While completions dropped in FY 2019 (in response to the border surge that year, for reasons I will explain below), AOs still completed 78,600 I-589s that year, more than double the number in FY 2016. Even given the pandemic in FY 2020, AOs completed 56,000 I-589s, 78 percent more than they had in FY 2016.
AOs completed 92,100 credible fear determinations in FY 2016. That number dipped in FY 2017 (when 14,000-plus fewer credible fear claims were made), but then increased in FY 2018 to 97,700, and again in FY 2019 (102,300).
During the border surge in FY 2019, AOs received 105,400 credible fear claims, and could not keep up with adjudications, which adversely impacted its ability to adjudicate I-589s. That is likely why the Trump administration hired more AOs that year.
Again, fewer credible fear claims were made in FY 2020 (30,800), due to CDC's imposition of restrictions on entries during the pandemic, but AOs still completed 33,600 of them that year.
Simply put, AOs completed many more affirmative asylum applications during every year of the Trump administration than they had in the year immediately preceding that administration, notwithstanding Covid-19.
In what context would the hiring hundreds of new asylum adjudicators (both AOs and IJs), and the adjudication of more asylum and credible fear claims, be considered a "dismant[ling of] the asylum system", let alone a "gutt[ing]" of it? CNN never references these facts, though, nor many others.
So, how exactly did Mayorkas's screed get the "fair enough" rating from CNN?
It's actually not that clear. A part of the network's rating had to do with the Trump administration's Migrant Protection Protocols (MPP, better known as "Remain in Mexico").
Under MPP, migrants who entered the United States illegally and requested asylum or claimed a fear of harm on return were sent back across the border to Mexico to await IJ adjudication of their asylum claims.
CNN asserted that "human rights advocates and journalists have reported that traffickers and other criminals victimized asylum seekers, including children, who were sent away from the US under" MPP.
Is that true? Possibly. Three points should be noted, however.
First, MPP did not apply to Mexican nationals, only to third country nationals ("other than Mexicans" or OTMs). That means that the only people who were subject to MPP were people who had voluntarily entered Mexico to begin with.
Second, as then-DHS Secretary Kirstjen Nielsen stated in announcing MPP, Mexico had agreed to provide the OTMs subject to the program "all appropriate humanitarian protections for the duration of their stay."
In fact, if you read the San Diego Union-Tribune article from July 2019 linked in the CNN fact-check, it explains: "Law enforcement officials in Baja California are so concerned about migrants becoming victims of kidnapping or human trafficking that they're traveling around to different shelters across the state to" warn them about criminals and scam artists.
The Union-Tribune continues: "Hector Alejandro Orozco Alvarado, the head of Baja California's human trafficking unit, said he wants to ease some of the fear migrants may have about coming forward to Mexican law enforcement authorities." Orozco Alvarado's office, the paper explained, "handled about eight cases of legitimate human trafficking involving migrants last year. There were three cases of migrants being kidnapped."
"Last year" in that context was 2018. MPP did not begin until 2019. In fact, much of that article detailed the dangers of being smuggled across the U.S. border to begin with, though it did describe situations in which migrants had been preyed upon by criminals when returning from their hearings.
Those threats are familiar, because I was warned about them when I attended a security briefing at the U.S. Embassy in Mexico City almost 20 years ago. I was told to avoid strangers, particularly those offering help in unfamiliar places, and to never get into certain commercial vehicles. Crime is a fact of life in parts of Mexico, much as it is a fact of life in my erstwhile hometown of Baltimore.
In that vein, there is no guarantee that the migrants who were in MPP would have been safe from crime no matter where they went. In the case of MPP, however, there were assurances from the Mexican government to look out for those migrants, which as the Union-Tribune article shows, it took seriously.
Third, the whole purpose behind MPP was to ensure that migrants had the opportunity to apply for asylum — just not while they were in the United States.
As I have noted previously, DOJ statistics show that between FY 2008 and the fourth quarter of FY 2019, 32.5 percent of all migrants who were found by a USCIS AO or an IJ to have demonstrated a credible fear of return after apprehension failed to actually appear at their removal proceedings and were ordered removed in absentia. More than 45 percent of them never even filed an asylum application.
MPP did not dismantle or gut the asylum system. To the contrary, it ensured that aliens were given the opportunity to apply for asylum in the United States. They just had to wait in Mexico for their hearings.
CNN also references the fact that: "Under Title 42 pandemic expulsion policy, the Trump administration turned away thousands of unaccompanied children [UACs] who had crossed the Mexican border." That is true, but as CNN also notes, the Biden administration has retained most of the Trump-era Title 42 restrictions — just not for UACs.
As a likely consequence, many would-be UACs never left home (or were, more likely, never sent for by their family members to the United States), and therefore were spared the dangers of migrating illegally.
Those dangers are real, as then-DHS Secretary John Kelly explained in February 2017:
Tragically, many of these children fall victim to robbery, extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico to the United States. Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable.
And, of course, CDC's direction that migrants entering illegally be quickly expelled under Title 42 of the U.S. Code was not an attempt to "dismantle" or worse "gut" the asylum system — if it were, I seriously doubt that the Biden administration would have continued it in whole or in part, or Secretary Mayorkas would be as big an offender as he accuses President Trump of having been.
Rather, it is an attempt to protect CBP employees from contracting Covid-19 from unscreened migrants, to protect those migrants from contracting it from one another, and to protect against further spread of Covid-19 within the United States, as the CDC director has explained.
Nor has the Biden administration's lifting of Title 42 restrictions on UACs been an unqualified success: On March 20, CNN itself reported that more than 5,000 UACs were in Border Patrol custody, 600 for more than 10 days. As I have explained many times before, Border Patrol is uniquely unprepared and ill-fit to detain children.
As for Mayorkas's statements that the Biden administration has had to "rebuild the entire system, including the policies and procedures required to administer the asylum laws that Congress passed long ago", I would really like to see some examples of what he means.
I wrote part of the asylum laws as a congressional staffer, and applied them for eight years as an IJ myself, and I literally have no idea what he's talking about.
Perhaps he's referencing decisions that were issued by attorneys general under the Trump administration that clarified the standards for asylum, particularly where claims were based on common criminality. As I have explained in the past, the standards that those attorneys general set were based upon prevailing case law — and not a rewriting of the asylum laws.
Or possibly Mayorkas was talking about regulations promulgated by the Trump administration, including on December 11, 2020. I submitted 66 pages of comment (single-spaced, with 372 footnotes) in response to the proposed rule that preceded those regulations, and explained tens if not hundreds of times that they, too, were based on case law, the Immigration and Nationality Act, or current regulations.
The previous administration may have clarified the standards for asylum, but it cannot be said by any objective observer that it "gutted" or "dismantled" the asylum system. It hired more asylum adjudicators and completed more asylum applications than the Obama-Biden administration did. "Objective observer" is supposed to be the definition of a "fact check". In this case, unfortunately, it was anything but.