Trump Tweets Out the Law

President gets excoriated for tweeting about expedited removal

By Andrew R. Arthur on June 25, 2018

President Donald Trump issued a tweet today that fanned a firestorm of negative responses. Interestingly, however, that tweet is simply a restatement of a law that has been on the books for more than 20 years.

Specifically, the president tweeted:

While somewhat inartfully stated, the second sentence in that tweet is, more less, how the law as written is supposed to work.

Under the expedited removal provisions in section 235(b) of the Immigration and Nationality Act (INA), aliens apprehended at the border or the ports of entry seeking entry through fraud or without proper documents, or without being admitted or paroled into the United States, are to be removed from the United States "without further hearing or review". This means that removal would occur without the alien appearing before an immigration judge, or going through formal removal proceedings under section 240 of the INA.

There is a loophole built into the expedited removal provisions, however. If the alien subject to expedited removal claims a fear of return to his or her home country, the alien is to be interviewed by an asylum officer with U.S. Citizenship and Immigration Services (USCIS), pursuant to section 235(b)(1)(B) of the INA. If the officer finds the claim of fear to be credible, the alien will be placed in removal proceedings to apply for asylum before an immigration judge.

As Attorney General Jeff Sessions explained in October 2017, however:

[I]n 2009, the previous Administration began to allow most aliens who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes — and case law that has expanded the concept of asylum well beyond Congressional intent — created even more incentives for illegal aliens to come here and claim a fear of return.

The proof is in the numbers. The USCIS Ombudsman reported that between 2000 and 2009, "USCIS received approximately 5,000 credible fear interview requests each year." Thereafter: "In 2009, the number of credible fear interview requests increased to 8,000. In 2012, the number rose to 13,000, and in 2013, it tripled to 36,000." USCIS statistics reveal that the number of credible fear claims filed eventually reached a high of 94,048 received by the agency in FY 2016. Thus, a process that was intended to expedite the removal of aliens who had entered illegally became a vehicle for entry into the United States.

Those numbers dropped off in the first two years of the Trump administration. In FY 2017 (which began almost four months before the president's inauguration), the number of credible fear claims received was 78,564, reaching a monthly low in April 2018 of 2,509 claims. Since then, however, the number of claims has begun to steadily increase, and by January 2018 (the last month for which statistics are available), the number of credible fear cases received was 8,121.

The attorney general's decision in Matter of A-B- should lead to the denial of more credible fear claims, because it contains bright-line rules for asylum officers to follow in assessing whether an alien has established persecution or a fear of persecution on account of membership in a particular social group, in cases where the alleged persecutor is a non-governmental criminal actor (as I explained in a June 13, 2018, post). This will likely reduce the number of aliens who claim credible fear in the future, because they will not go to the trouble and expense of entering the United States illegally if they believe they will be detained and removed in an expeditious manner.

Further, H.R. 6136, the "Border Security and Immigration Reform Act of 2018", that is scheduled to be considered by the House this week, contains provisions that crack down on abuse of the credible fear loophole, as I detailed in my June 18, 2018, analysis of the provisions within that bill.

Additional immigration judges are needed, as I told the Senate Judiciary Committee's Subcommittee on Border Security and Immigration in April 2018. That said, the president is correct to the degree that he is asserting that the laws on the books relating to expedited removal should be enforced. The administration has taken action on this issue; now it is up to Congress to strengthen the law.