The ‘Unknown Unknowns’ of Biden’s Latest Border Plan

Are illegal migrants getting work authorization and a year to resettle before applying for asylum? Congress and the courts may want to know.

By Andrew R. Arthur on January 27, 2023

I’ve recently analyzed two proposals in President Biden’s January 5 “New Border Enforcement Actions”: a parole program for Venezuelans, Nicaraguans, Haitians, and Cubans that’s being challenged in federal court; and the scheduling of interviews via the CBP One app, which allows CBP to funnel would-be illegal migrants into the United States through the ports of entry. There are a lot of “unknown unknowns” in those programs, including whether and when aliens in the two programs are given work authorization, how long those who appear for such interviews can remain before being placed into removal proceedings, and whether those aliens count as Southwest border “encounters” in CBP’s monthly statistics. A few congressmen and federal judges may want to know answers to those questions.

Biden Administration Lauds Successes. Before I begin, however, I want to note that the administration is already taking a victory lap over how well its new border regime is working.

On January 25, for example, the DHS press shop put out a release captioned “Unlawful Southwest Border Crossings Plummet Under New Border Enforcement Measures”. It states:

Preliminary numbers from January show that encounters of Cubans, Haitians, Nicaraguans, and Venezuelans crossing unlawfully between ports of entry at the southwest border declined 97% compared to December. Encounters with individuals from these countries dropped from a 7-day average of 3,367 per day on December 11, to a seven-day average of just 115 on January 24. The decline in encounters from those populations occurred even as encounters of other noncitizens are returning to customary levels after a typical seasonal decline over the holidays.

Apparently, DHS also held a call with reporters from friendly outlets, because on January 25, the New York Times ran a piece captioned “Biden Officials Credit New Border Measures for Decline in Illegal Crossings”, which repeats several of these points and includes two important additional factoids:

Previously, the CBP One process was open only to migrants who were recommended by a nonprofit organization, which applied on their behalf. From May to December, more than 109,000 migrants entered the United States this way. The administration has not expanded the number of appointments it is offering, which stand at about 20,000 a month.

I’ll return to these points below, but both the Times article and the DHS press release elide an important question: Are the Biden New Border Enforcement Actions actually deterring migrants from entering illegally, or are they just applying a pseudo-legal gloss to what are still illegal entries?

Expedited Removal and the Detention Mandate. Aliens apprehended entering illegally and those deemed inadmissible at the ports of entry because they lack proper entry documents are subject to “expedited removal”. Some quick background.

Prior to 1996, aliens excludable from the United States because they lacked proper entry documents (like visas) were placed into “exclusion proceedings” before an immigration judge (IJ). During exclusion proceedings, those aliens (deemed “applicants”) bore the burden of showing they were admissible to the United States and not excludable on any ground in section 212 of the Immigration and Nationality Act (INA).

Many of those aliens showed up without valid admission documents to apply for asylum before IJs. It was a smart play because — due to a lack of detention space — the then-INS (which had jurisdiction over immigration enforcement before it was abolished in the Homeland Security Act of 2002) would release those aliens into the United States.

As Rep. Dan Bishop (R-N.C.) alluded to in an April congressional hearing with DHS Secretary Alejandro Mayorkas, that’s how Ramzi Yousef, mastermind of the first (1993) World Trade Center bombing, entered the United States. He showed up with a fake passport, requested asylum at JFK, and was released.

Yousef fled the United States after that bombing and, as the 9/11 Commission explained, “inspired” his uncle, Khalid Sheikh Mohammed (KSM) “to become involved in planning attacks against the United States”. KSM, of course, was the mastermind of 9/11.

In response to Yousef and others, and to curb abuses of the asylum system by arriving aliens, Congress in 1996 created a two-track system for dealing with aliens who entered illegally or without proper documents, both of which are set forth in the inspection protocols for arriving aliens in section 235 of the INA.

Under section 235(b)(1) of the INA, aliens who are inadmissible because they offered fraudulent admission documents or no documents at all upon arrival (including illegal entrants) are subject to expedited removal. Under that process, DHS no longer has to place such aliens into proceedings before an IJ to remove them — DHS essentially issues the order and removes the alien.

That’s the first track. The second track, informally known as “regular removal”, is set forth in section 235(b)(2) of the INA and applies to all arriving aliens inadmissible on any grounds in section 212 of the INA, including those inadmissible because they lack proper entry documents.

Pursuant to that section, and similar to the pre-1996 exclusion process, such aliens are placed into removal proceedings before IJs at which, again, they must show they are admissible and not inadmissible on any grounds. Those aliens, as before the 1996 amendments, can apply for asylum as “relief” from removal.

That said, even under expedited removal, aliens are offered an opportunity to make an asylum claim. If an alien subject to expedited removal asserts a fear of harm if returned or requests asylum, CBP must refer the alien to asylum officers at USCIS, who will conduct a “credible fear” interview.

Credible fear is a screening process to determine whether the alien may have an asylum claim, and the standard for credible fear is consequently low: “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”.

If the alien receives a “positive credible fear” determination from the asylum officer (and because the standard is low, 81 percent of all aliens who claimed credible fear between FY 2008 and FY 2019 received such a determination from asylum officers), as with “regular removal”, the alien is placed into proceedings, at which time he or she can apply for asylum.

Under section 235(b) of the INA as written, however, there is no “Ramzi Yousef” problem, and the likelihood that an arriving alien will make a weak or bogus asylum claim is diminished because — regardless of whether an alien is in expedited or regular removal proceedings — the alien must be detained, from the moment of apprehension until the alien is granted asylum or removed.

The Morton Directive and the Surge in Credible Fear Claims. For more than a dozen years, various administrations complied with that detention mandate. That changed, however, in December 2009, when then-ICE Director John Morton directed his officers and agents to consider for parole, under section 212(d)(5)(A) of the INA, aliens who were placed into removal proceedings after receiving positive credible fear determinations.

That directive was issued despite the fact that Congress — in the same 1996 act that created expedited removal — placed restrictions on that parole authority, in response to past executive branch abuses of parole.

Prior to that 1996 amendment, section 212(d)(5)(A) of the INA allowed the then-INS to parole aliens “for emergent reasons or for reasons deemed strictly in the public interest”. As that provision was amended, however, the former INS and current DHS could parole aliens “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit”.

Note that even prior to that amendment, parole was only supposed to be granted for things like allowing an alien to receive emergency medical care or to appear (as a witness or defendant) in judicial proceedings in the United States. The 1996 amendment certainly did not expand DHS’s parole power.

The Morton directive — purely administratively — also changed, or at least attempted to change, the nature of parole. This is important, because parole is intended to allow an otherwise inadmissible alien to enter the United States, and paroled aliens usually aren’t placed into proceedings unless and until parole is revoked.

Under the Morton directive, aliens were “released” on parole, but still had to go to their removal hearings. If they didn’t, they would be ordered removed in absentia, the fate of 32.5 percent of the aliens who received positive credible fear determinations between FY 2008 and FY 2019.

Not surprisingly, as was the case before expedited removal was created in the 1996 act, increasing numbers of arriving aliens subject to expedited removal — who should, by statute, have been detained — began making credible fear claims in order to gain release.

Before FY 2010 — when the Morton directive was issued — just between 4 and 5 percent of aliens subject to expedited removal claimed a fear of return. That jumped to 7 percent in FY 2010, 15 percent in FY 2013, and to 44 percent in FY 2017.

The number of aliens encountered by CBP at the Southwest border who were detained and released or who were never detained during that period similarly mushroomed.

In FY 2013, 82 percent of such aliens were detained throughout the asylum process, while an additional 9 percent were detained and released and another 9 percent were never detained. By FY 2016, 57 percent remained detained throughout, 25 percent were detained and released, and 18 percent were never detained.

Donald Trump became president about four months into FY 2017 vowing to end “catch and release”, but by then so many aliens were showing up at the border and claiming asylum that there was not much he could do. That year, 56 percent of encountered aliens remained detained, 23 percent were detained and released, and 20 percent were never detained.

Trump’s hands were further tied by a 2015 court order that required DHS to release children who had entered the United States illegally with adults in “family units” within 20 days, notwithstanding the detention mandate in section 235(b) of the INA.

To avoid “family separation”, the adults were usually released as well and, not surprisingly, by FY 2019, nearly 57 percent (nearly 474,000) of the illegal migrants apprehended at the Southwest border were in family units — a year in which just 33 percent of encountered aliens remained detained, 26 percent were detained and released, and 40 percent were never detained.

In response, and knowing that he could not comply with the detention mandate in section 235(b) of the INA, Trump did the next best thing — he implemented the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

In lieu of detention or release, MPP allowed DHS to send non-Mexican arriving aliens entering illegally at the Southwest border who requested asylum back to Mexico to await their asylum hearings before IJs. It was a success: as DHS explained in its assessment of MPP, “aliens without meritorious claims — which no longer constitute a free ticket into the United States —are beginning to voluntarily return home”.

One of Biden’s first acts as president, however, was to suspend MPP and DHS has since attempted — twice — to terminate the program. Those actions are being challenged by the states of Texas and Missouri in Texas v. Biden, which has been bouncing around the federal courts since April 2021.

Biden. The current administration has not even tried to detain the vast majority of the more than 4.5 million aliens CBP encountered at the Southwest border since February 2021, Biden’s first full month in office. It has expelled just over 1.69 million (37.3 percent) of them under CDC orders issued pursuant to Title 42 of the U.S. Code directing the expulsion of arriving aliens in response to the Covid-19 pandemic.

The rest have been processed for proceedings under the INA and, by my estimates, more than 1.8 million of have been released into the country.

Increasingly, Biden has been releasing them on parole. In FY 2022, more than 378,000 illegal migrants apprehended by Border Patrol at the Southwest border were paroled into the United States, while nearly 311,000 others were let go on their own recognizance.

In the first three months of FY 2023 alone, however, just short of 290,000 illegal migrants who were caught by agents at the Southwest border have been paroled into the United States, while more than 47,000 others were released on their own recognizance.

Those figures do not include aliens deemed inadmissible at the Southwest border ports who were paroled, for a simple reason: CBP doesn’t publish those statistics.

Note that, in a break from every prior president, Biden isn’t interested in deterring foreign nationals from entering the United States illegally. Instead, the administration’s sole focus is on ensuring that any alien who wants to apply for asylum in the United States can do so.

That figure is limited only by the global population and the interest and ability of those would-be asylum applicants to make it here. That’s why Southwest border apprehensions are spiking now.

Parole Program for Nationals of Venezuela, Nicaragua, Haiti, and Cuba. Which brings me to the White House’s January 5 fact sheet, captioned “Biden-⁠Harris Administration Announces New Border Enforcement Actions”.

As noted, it reveals that the administration is creating a new parole program for nationals of Venezuela, Nicaragua, Haiti, and Cuba, allowing up to 30,000 of them per month to apply for two years of parole in the United States. That’s the carrot.

The stick:

Individuals who irregularly cross the Panama, Mexico, or U.S. border after the date of this announcement will be ineligible for the parole process and will be subject to expulsion to Mexico, which will accept returns of 30,000 individuals per month from these four countries who fail to use these new pathways.

That’s confusing, for two reasons. First, aliens deported from the United States under the INA are “removed”, not “expelled”. Second, the use of the phrase “subject to expulsion” suggests that those aliens will be expelled under Title 42, which is odd since the administration is fighting to end Title 42 in two separate federal cases (CDC v. Louisiana and Arizona v. Mayorkas). If Title 42 ends — no more stick.

In any event, 20 states are suing the Biden administration to block implementation of this parole scheme for nationals of the four countries, in a case captioned Texas v. DHS.

One of their best points is that the administration has failed to “explain or analyze” how it “would remove from the United States aliens paroled through the program after the end of any period of authorized parole, despite admitting general difficulty removing such aliens to their home countries presently”.

Logically, nationals of those countries would use their two-year parole period in the United States to apply for asylum with USCIS, through the “affirmative asylum process”. That could take years, and while those applications are pending, the applicants would be exempt from removal.

If at the end of that process their asylum applications are denied, they would be placed into removal proceedings before an IJ, who would consider their claims all over again. That could add an additional decade or more to their stays. There’s no reason for the Biden administration to figure out what to do with them, because it will be long gone by then.

Which raises the question of whether those aliens will be granted work authorization, and if so when. By regulation, aliens paroled into the United States are not automatically granted work authorization, but they may apply for it.

Will those 30,000 new parolees per month be granted work authorization at the same time that they are given parole? If so, they would be inadmissible under section 212(a)(5)(A)(i) of the INA, which bars the admission of any alien to perform labor unless the secretary of Labor certifies there aren’t enough American workers to do the work and that “the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed”.

If they aren’t given work authorization when they receive parole, they may be waiting a while. It’s currently taking USCIS between eight months (at the National Benefits Center) and 15.5 months (at the Potomac Service Center) to adjudicate I-765s, applications for employment authorization.

CBP One Processing at the Southwest Border Ports. Once those foreign nationals have their parole approved, they can enter at any port of entry (including interior ports by air), but that’s not true of aliens who use the CBP One app “for scheduling an appointment to present themselves for inspection and to initiate a protection claim”.

There is a certain logic to this aspect of the White House plan. In December, agents at the Southwest border apprehended more than 221,000 illegal migrants, while 87,631 others evaded apprehension and entered illegally (known colloquially as “got-aways”). That’s nearly 309,000 illegal entrants, at a rate of nearly 10,000 per day.

There are just over 5,000 agents on the line at the border at any given time, and they lack the capacity to both respond to and care for that many migrants while also preventing drugs, weapons, other contraband, terrorists, and criminals from entering the country.

It would be much better, from a law-enforcement and national-security standpoint, if all those would-be migrants lined up and waited patiently for CBP officers to interview them at the ports. Here’s the problem.

As the Times reported, CBP plans on interviewing 20,000 migrants with appointments scheduled through the CBP One app per month. At current illegal entry levels, that means that anywhere between 180,000 and 280,000 others will have to wait their turn, per month, a figure that will quickly grow exponentially.

They won’t stand around waiting for long. Even if apprehension numbers drop for a month or two, they will soon surge, especially as the backlog on the other side of the border of migrants waiting to be interviewed grows to a half million or more. That’s the nightmare scenario, but one almost certain to occur.

Those points aside, however, it’s unclear what will happen during those interviews at the ports. Will the migrants be screened for credible fear — as the INA allows if not requires? Those interviews can take hours, and there’s no way asylum officers will be able to complete 20,000 each month, given resource constraints.

That means that most, if not all, of them will be waived through with parole. Which raises a lot more questions, not least of which is the legality of DHS using its limited parole authority in that manner.

If those CBP One interview applicants are waived through the ports with parole, will they be given work authorization at the same time? That would raise the same problems as for the migrants who enter with advance parole from Venezuela, Nicaragua, Haiti, and Cuba.

Will they be counted as CBP “encounters” in the agency’s monthly disclosures? Those disclosures present such a dismal picture of the effects of the administration’s border policies that many — myself included — have questioned whether recent releases have been timed for political purposes.

Logically, arriving aliens paroled following a CBP One port interview would be counted as CBP encounters because they are inadmissible when they show up at the ports.

Given how the agency has seemingly timed many of those statistical releases for political purposes (after early voting had begun in several states during the November midterm elections for the FY 2022 annual encounter statistics, for example), will the administration deliberately not include them in CBP’s monthly encounter statistics? That’s unclear.

Then, there’s the question of whether aliens who are allowed into the United States after port interviews will be immediately placed into removal proceedings, or instead will be paroled and told to later appear at ICE offices for “Notices to Appear”, the charging documents in removal proceedings.

Back in May, Epoch Times reported that DHS was paroling aliens into the United States for up to a year before requiring them to report to ICE. That’s time those aliens can work, find jobs, buy houses, and build up other equities. Such equities, in turn, would make it much more difficult to remove those aliens when and if they are ordered removed.

My colleague Todd Bensman reports that during his recent travel to the border, he saw migrants who came through this port interview system and were granted parole for one year before they are required to report to ICE (confirming the Epoch Times’ reporting), and who claim that they have been granted work authorization at the ports.

Finally, there is the issue of when the administration plans on starting those CBP One scheduled port interviews. The January 5 fact sheet states they’ll start “when Title 42 eventually lifts”, but the Times reports they’ve been ongoing since May, and that 109,000-plus migrants have already entered through this scheme. Which is it?

Those are significant issues, which Congress has an obligation to investigate, and the judges in Texas v. Biden and Texas v. DHS may be called upon to explore. If what Bensman has been told is correct, it appears that the Biden administration is, in essence, running a separate immigration system untethered to the alien admissions limits Congress has set, and tied to the INA in form alone.