Trump’s Frustration with the Border Grows

Nielsen, Vitiello out, but keep Cissna

By Andrew R. Arthur on April 8, 2019

On April 5, 2019, CNN reported that President Donald Trump has withdrawn the nomination of Ron Vitiello as the Director of U.S. Immigration and Customs Enforcement (ICE). On Sunday, April 7, 2019 Fox News reported that that Secretary of Homeland Security Kirstjen Nielsen had resigned, replaced in an acting capacity by U.S. Customs and Border Protection (CBP) Commissioner Kevin McAleenan. There’s a brewing disaster the border, but these moves raise the question whether the president is irrationally looking for scapegoats on whom to blame for that situation, or is simply looking for people capable of carrying out his agenda. Either way, he must reject purported efforts to remove U.S. Citizenship and Immigration Services (USCIS) Director Francis Cissna. 

With respect to the first position, there’s the following from CNN Politics: "Nielsen 'believed the situation was becoming untenable with the President becoming increasingly unhinged about the border crisis and making unreasonable and even impossible requests,'" according to an unnamed "senior administration official."

To support the second position, there's the following from the same article: "Trump has vented privately that Nielsen hasn't adequately secured the border or enacted stricter immigration rules, even as she became the face of policies that administration critics called heartless and illegal."

The situation at the border did not happen overnight: I explained why it was inevitable in May 2018. At that time, I made clear that it was largely up to Congress to resolve the issue. Congress and the executive branch do not exist in individual bubbles, however. As a former staffer who has personally helped get needed legislation passed, I can tell you that you need the two working in tandem to accomplish that goal. Members of Congress can make the case for why legislation is necessary, but they rely on the executive branch to provide the facts to support those positions. And then, they rely on administration officials and line executive-branch employees to ensure that the finished product will not create more problems than it solves.

Most importantly, however, legislation often requires an impetus from the executive branch to be introduced to begin with. The executive branch sometimes has to push legislative priorities on congressional leadership.

Until January 2019, the White House was in a stronger position to do so, for the simple reason that both houses of Congress were controlled by Republicans. The necessary changes I identified in May 2018 were not easy votes, because the issues involved were easily demagogued. Further, immigration legislation is never easy in a year divisible by two (when all 435 Members of the House of Representatives and one-third of Senators are up for reelection), but is doable: just look at the two 1996 acts and the 1986 amnesty.

The best previous hope to have resolved the issues we are facing at the border today was the Securing America's Future Act of 2018 (SAFA), as I explained in May. It is unclear what steps House leadership, the Department of Homeland Security (DHS), and the White House took to secure passage of SAFA, but they plainly were insufficient: the bill received only 193 votes in June 2018, all from Republicans. Critically, it could have passed with only Republican votes: 41 Republicans voted against it, many of whom were in tight electoral races. Many of those Republicans likely would have voted for the bill, had they received sufficient cover. They didn’t. This is not cynical, it is simply realistic. 

Nine months later, on March 28, 2019, Secretary Nielsen did send Congress a letter explaining that the border was in a "dire situation." Anyone who had been tracking the numbers, however, knew for at least a year that this dire situation was brewing. Put another way, the time to send that letter was in May 2018 (or earlier), not after the crisis had already gotten out of hand.

Immigration was the main issue that got Donald Trump elected, and so necessarily the spotlight is brightest on those government officials who are charged with implementing the president’s policies. And, if a problem in immigration becomes a crisis under your watch, this president is likely to demand your resignation.

So, is it petulance or a need for personnel who can do the job that led to the dismissals of Vitiello and Nielsen? There is no way to know for sure. I will note, however, that some indication may be found in the fact that the president appointed CBP Director Kevin McAleenan as the Acting Secretary of Homeland Security. McAleenan’s CBP (in particular, the Border Patrol) has borne the brunt of the unfolding disaster at the border, as Nielsen's letter makes clear. Border Patrol's job is to apprehend and process illegal migrants. That it has done its job so well is the reason that the problems elsewhere in the system are evident. In this scenario, McAleenan is a doer.

Which brings me to Francis Cissna, the Director of U.S. Citizenship and Immigration Services (USCIS). According to Politico, senior White House adviser Stephen Miller has been pushing Trump to fire Cissna, who, it notes, "has overseen implementation of some of the administration's lesser-known immigration policies, including green card reforms and changes to how the federal government processes and admits refugees."

USCIS plays a key role in the processing of immigrants along the border, because asylum officers within the agency are responsible for adjudicating "credible fear" claims, as I explained in May. I discussed deficiencies in the credible fear system, and how they were contributing to the border crisis, therein:

Aliens caught entering the United States illegally are supposed to be "expeditiously removed" from the United States, without seeing an immigration judge. If the alien claims a "credible fear" of return, however, the alien will be interviewed by an asylum officer. If the asylum officer finds the alien has established a credible fear, the alien is eligible for removal proceedings to apply for asylum. Credible fear is found in 75 to 90 percent of all cases reviewed by asylum officers. In 2009, according to [then-] Attorney General Sessions, the Obama administration began releasing aliens found to have credible fear. As a likely result, the number of credible fear reviews increased significantly, from 5,000 in 2009, to 94,000 in 2016. In fact, prior to 2013, only 1 percent of arriving aliens claimed credible fear, whereas currently 10 percent make such claims. The attorney general has stated that half of those who pass credible fear screening never file an asylum application, however. U.S. Immigration and Customs Enforcement (ICE) lacked detention space to hold all aliens who claimed credible fear in the past, and many were released for hearings that may occur years in the future. It is unclear whether DHS will be able to find sufficient space to detain aliens who are apprehended and are found to have credible fear pending a final decision on their applications for asylum, despite the department's best efforts.

To update, in FY 2018, 18 percent of all aliens in expedited removal claimed credible fear, according to CBP statistics

There's not much that USCIS, however, could have done to have ameliorated the problems at the border. The agency’s mandate is to adjudicate benefits under the rules Congress sets. Here is the language of the credible fear standard in section 235(b)(1)(B)(v) of the Immigration and Nationality Act (INA):

For purposes of this subparagraph, the term "credible fear of persecution" means that there is 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 officer, that the alien could establish eligibility for asylum under [section 208 of the INA]. (Emphasis added).

This is not a high bar.

Then-Attorney General Jeff Sessions attempted to set guidelines for the adjudication of asylum claims generally, and in particular the sort of criminal-based asylum claims that are common in many credible-fear cases, in Matter of A-B-. The application of that decision to credible-fear cases has been enjoined, however, by Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia, erroneously,  as I explained in a December 2018 post.

Another problem with the credible fear standard is that it applies to credible fears of torture, as well as persecution, which I discussed in an October 2018 post

Therefore, even if an asylum officer were to find that an alien failed to show a credible fear of persecution because the alien failed to demonstrate that the harm inflicted or feared was on account of one of the five factors for asylum relief, if the asylum officer were to find that there was a "significant possibility" the alien could be subjected to significant physical or mental pain or suffering if returned to the country of removal, that officer could find that the alien still had a credible fear of torture, and refer the matter to the immigration court for removal proceedings.

Consider the case in which an alien asserts that a gang is attempting to recruit him, and will harm or kill him if he refuses to join. If the asylum officer believes the claim, the asylum officer may refer the case to the immigration court to determine whether the gang was acting "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." Matter of A-B- would not stop such a referral, even though country conditions evidence generally shows that the governments of the countries from which most of these claimants come (El Salvador, Guatemala, and Honduras) forcefully oppose the gangs.

In that post, I recommended that jurisdiction over Torture Convention claims should be shifted to DHS, and away from the Executive Office for Immigration Review (EOIR), the Department of Justice component with jurisdiction over the immigration courts and the Board of Immigration Appeals. Prior to 1999, in fact, EOIR lacked jurisdiction over such claims, which was vested in the former Immigration and Naturalization Service (INS), the precursor to the immigration components in DHS. That way, if an alien in expedited removal did not have an asylum claim, DHS could determine whether the alien was likely to be subject to torture as defined, and if not quickly return the alien.

USCIS has extremely limited resources, as the agency explains on its website:

USCIS is funded primarily by immigration and naturalization benefit fees charged to applicants and petitioners. Fees collected from individuals or organizations filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). Congress created the IEFA in 1988, establishing the authority to recover the full cost of immigration benefit processing. This account represents approximately 95 percent of USCIS’ fiscal year (FY) 2016 total budget authority. The remaining budget authority comes from two other mandatory fee accounts and appropriated funding for the E-Verify program.

No fee is currently charged for either credible fear or asylum applications, and therefore the funding for asylum officers must come from the IEFA. This significantly limits the number of officers who are available to adjudicate those claims. The Daily Beast has recently reported: "More than 300,000 asylum cases are currently pending, and over 100,000 people applied for asylum with [USCIS] last year." That is in addition to the 99,035 credible fear cases that USCIS reported it received in FY 2018. The Migration Policy Institute reported in September 2018 that the agency expected 40 percent of its then-520 asylum officers would be "occupied with doing credible-fear screenings in 2017." USCIS under Director Cissna increased the resources dedicated to processing asylum cases, as its website notes, but DHS must still step in to provide more resources for the agency.

USCIS has attempted to make the most of the limited asylum-officer resources that it has. Specifically, it has reinstituted the "last in, first out" (LIFO) system for processing asylum claims. The agency explained:

This priority approach, first established by the asylum reforms of 1995 and used for 20 years until 2014, seeks to deter those who might try to use the existing backlog as a means to obtain employment authorization. Returning to a "last in, first out" interview schedule will allow USCIS to identify frivolous, fraudulent or otherwise non-meritorious asylum claims earlier and place those individuals into removal proceedings.

This system will free up asylum officers to hear credible fear claims more quickly. The more quickly claims are heard, the less time applicants with non-meritorious claims must be detained, and the more time that is available to DHS to detain family units for removal proceedings. This is important because detention of minors (and therefore of any family members who have entered illegally with them) is currently limited under the Flores settlement agreement to 20 days.

As Cissna stated in announcing this change: "Lingering backlogs can be exploited and used to undermine national security and the integrity of the asylum system."

Speaking of Flores, on September 7, 2018, DHS issued a notice of proposed rulemaking on the apprehension, processing, care, and custody of alien minors and unaccompanied alien children. As I explained in a post that month: "The rule would adopt regulatory provisions paralleling 'the relevant and substantive terms of the’ settlement agreement in Flores v. Reno with certain modifications ‘to reflect intervening statutory and operational changes while still providing similar substantive protections and standards.'" Simply put, it would make it easier for DHS to detain family units, removing an incentive for parents and guardians to enter the United States illegally with children. 

DHS must provide adequate resources to implement that rule, as amended, as quickly as possible. This will require, however, responding to what are likely hundreds of thousands of comments, almost exclusively negative, on that rule.

With respect to Cissna, however, I let my colleague, Mark Krikorian, have the final word:

I could not have put it better.