Read More: Trump vs. Biden on Immigration Policy
In Thursday's debate, the two candidates for president – incumbent Donald Trump and challenger Joe Biden – were finally asked about immigration. Both focused on the rate at which aliens entering illegally with children ("family units" or FMUs) appeared – or not – at their subsequent removal proceedings. Neither had the right statistics, which are impossible to pin down exactly because they are a moving target; but the president was correct that the in absentia rate (those ordered removed because they failed to appear) reveals abuses in the credible-fear system.
Aliens who are apprehended entering illegally along the border or at the ports of entry without proper documents are subject to expedited removal – that is, being removed from the United States without being placed in removal proceedings before an immigration judge (IJ) – under section 235(b)(1) of the Immigration and Nationality Act (INA).
If, however, the alien claims a fear of return, and that fear is found to be credible by a USCIS asylum officer, the alien will be referred to an IJ to apply for asylum.
The rates at which FMUs have been apprehended at the border and the ports of entry has fluctuated over the years, but it skyrocketed in FY 2019, with dire consequences.
For example, of the 303,916 aliens apprehended by the Border Patrol along the Southwest border in FY 2017, 75,622 (just short of 25 percent) were FMUs. By contrast, that percentage was 27 percent in FY 2018, before climbing to almost 56 percent of the total apprehensions (473,682 out of 851,508) in FY 2019.
The large number of FMUs (and unaccompanied alien minors) who entered in FY 2019 swamped the capacity of Customs and Border Protection (CBP) to detain and care for them, creating a humanitarian and national security disaster at the border. As the DHS Homeland Security Council's bipartisan CBP Families and Children Care Panel stated in its April 2019 Final Emergency Interim Report (published at the height of the crisis):
On any given day, CBP is at half strength or less "on the line" in places at the border, endangering themselves and the country. Turned on its head, CBP personnel are instead tending to the daily needs of thousands of illegal migrants who CBP has already processed but is left holding for days and sometimes weeks in confinement space that was built decades ago and designed to confine only a fraction of these illegal migrants for hours, not days or weeks, and certainly not intended to confine tender age children.
As a consequence, rather than processing aliens for expedited removal, CBP was simply serving large numbers of aliens with Notices to Appear (the charging document in removal proceedings) and releasing them.
This, exacerbated by the 2016 decision in Flores v. Lynch (which mandates the release of all children from DHS custody within 20 days – meaning that the parents usually get released as well) – was the "major 'pull factor'" encouraging FMUs to enter the United States illegally, according to that bipartisan panel.
In Thursday's debate, Biden contended that FMUs who were subject to expedited removal and found to have credible fear "were released. And guess what, they showed up for the hearing." Trump countered that "less than 1 percent of" those FMUs "came back."
There are no reliable statistics on the in absentia rates for FMUs following a positive credible fear determination by an asylum officer. The Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts, however, has published chart detailing the outcomes in all asylum cases before IJs following a credible fear claim over a 12-year period (FY 2008-FY 2019), which would include cases involving FMUs.
While the actual in absentia rate is closer to what Biden claimed (given the fact that he claimed a 100 percent appearance rate, while Trump claimed less than one percent), the statistics do back up Trump's points.
Again, non-appearance rates before IJs are a moving target, because it can take anywhere from six months to several years for asylum claims to be heard, and during any point in that process, the alien could fail to appear and be ordered removed in absentia.
Because EOIR's statistics are a 12-year portrait, however, much of the uncertainty arising from the fact that non-appearance is a moving target gets reduced (but again, because some cases drag out for years, that uncertainty cannot be eliminated).
EOIR's chart reveals that the rate at which asylum officers (and IJs – aliens can request that an IJ review an asylum officer's negative credible-fear determination) find that an alien has shown credible fear is high – an 83 percent approval rate over the 12 years in question.
That said, however, at the end of their cases, only 14 percent of all credible fear claimants (or 16.86 percent of those found to have credible fear) are granted asylum. By contrast, only 45 percent of all aliens who claim credible fear (and more importantly, 54 percent of aliens found to have credible fear) ever actually file an asylum application.
That means that 46 percent of all aliens who are found to have a credible fear of return and are placed into removal proceedings in order to apply for asylum never actually apply for asylum.
Which leads me to the key point that the two candidates were respectively trying to make: 23 percent of the 83 percent of aliens who claimed and were found to have credible fear – and who were therefore referred to immigration court to apply for asylum – failed to file asylum applications and were removed in absentia: an almost 28 percent no-show rate for aliens found to have credible fear.
In addition, of the 54 percent who were referred and filed asylum applications, almost five percent were ordered removed in absentia despite filing applications, meaning the actual in absentia rate is more than 32.5 percent of all aliens referred after a positive credible fear finding.
Statistics are hard, but follow me here. Comparing those two statistics (failure to file and in absentia rates) to the actual asylum-grant rate (again, 16.86 percent), aliens are almost twice as likely to be ordered removed in absentia as they are to be granted asylum, and 170 percent more likely not to file an asylum application at all than to be granted asylum.
And, of course, that only captures the number of aliens who go through the immigration court system – not how many of the more than 83 percent of aliens who are denied asylum actually leave (or are removed) after those asylum applications are denied.
That is what the president was referring to at the debate when he stated: "We have to send ICE out and Border Patrol out to find them." Frankly, given how limited interior enforcement has been for the last few years, there is no reason for those aliens to leave, because they almost definitely are never going to be removed.
As a factual matter, the best way to prevent the overwhelming number of migrants entering illegally who are never going to be granted asylum (because they fail to appear, never file those applications, or their applications are denied) from remaining in the United States is to prevent them from ever entering to begin with, or by detaining them until their asylum claims are heard (which section 235(b)(1)(B)(ii) of the INA requires, but which rarely occurs).
That is what the president was referencing in the debate when he stated "we get rid of catch and release", which the administration has done to some degree, through such administrative programs as the Migrant Protection Protocols ("MPP" or "Remain in Mexico") and the "third-country transit bar" (which requires migrants to the United States to apply for protection in the first safe country they come to before applying for asylum in the United States). Biden vows to end both, and several more.
So, from the limited statistics available, Biden was closer to the actual number of no-shows (but was still not correct). But, Trump's underlying point — that FMU admissions after credible-fear determinations lead to catch-and-release — is still valid.