Yes, All Border Migrants Have a Right to Apply for Asylum, But . . .

. . . They must also be detained, and not only because it’s what Congress requires

By Andrew R. Arthur on August 11, 2023

I recently returned from Sierra Vista, Ariz., where I testified at a joint congressional hearing on the impacts of the ongoing border crisis on American communities. After that hearing, I was interviewed by a reporter from a national outlet who demanded that I admit that all border migrants have a right to apply for asylum. She was visibly disappointed when I readily did so but was skeptical when I added that they must also be detained. Both points are indisputably correct — but the latter is largely ignored. It shouldn’t be, because detention is not only what the law requires, but it also protects our national sovereignty, facilitates border security, and provides benefits to the migrants themselves — especially legitimate asylees and their families.

The Vast Breadth of the Asylum Statute

Section 208 of the Immigration and Nationality Act (INA) is the asylum statute, and it casts its net wide to offer any alien on U.S. soil the opportunity to apply for that humanitarian protection. Here’s how that statute begins, at section 208(a)(1): “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival...), irrespective of such alien's status, may apply for asylum.” (Emphasis added.)

There are a handful of exceptions, for aliens who can be relocated to a safe third country, have already applied for asylum and been denied, and have failed to apply for asylum within 1 year of arrival. The latter two exceptions have their own exceptions based on “changed circumstances”, however, and the only U.S. safe third country agreement currently in place applies only to foreign nationals coming here from Canada (and benefits Ottawa almost exclusively).

In other words, not only is the asylum statute broad in its coverage, but as the forgoing excerpt reveals, it’s deliberately broad.

It’s also strangely structured, because there is a much longer set of exceptions — applicable to criminals, terrorists, persecutors, and those who were resettled in a third country before they came to the United States —  later in the statute (at section 208(b)(2) of the INA) that limit the universe of aliens who may be granted asylum.

In other words, Osama Bin Ladin had an absolute right to apply for asylum; he just never would have been granted it.

In prior congressional hearings, I have been confronted with the fact that — according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, at least — as an immigration judge, I had a 90.9 percent asylum denial rate.

Although I never kept count, that statistic is likely correct, but it omits the fact that in my court, many if not most of the asylum claims I heard were from aliens detained either in the Pennsylvania state or federal corrections systems. They were by definition criminals and nearly all them (1) had a right to apply for asylum; and (2) by law, were aliens whom I could not grant asylum to.

Congress’ Border Inspection Protocol

As I explained — at length — in pages 3 through 7 of my written testimony for the recent hearing in Arizona, Congress has established in statute an in-depth and comprehensive inspection protocol that CBP is required to apply for all so-called “applicants for admission” at the air, land, and sea borders of the United States, which is codified in section 235 of the INA.

Under that provision, the term “applicants for admission”, which identifies those aliens whom CBP must subject to inspection, pertains not only to those foreign nationals who appear at the formal air, land, and sea ports of entry for inspection, but also — and in the exact same manner — to those aliens who cross illegally between those ports in an attempt to evade inspection.

In other words, in the eyes of the law and in its implementation, there is no difference between an alien who appears without proper admission documents at, say, CBP’s Rio Grande City or Roma ports of entry (adjacent to one another in Texas’ Rio Grande Valley) and an alien who crosses the river into the United States illegally between those two ports. Neither is “seeking to enter lawfully”, regardless of the White House’s assertions to the contrary.

The Border Detention Mandate

All of which brings me to the caveat I offered to the reporter in question: Aliens at the Southwest border and ports have an almost absolute right to apply for asylum, but under the section 235 inspection protocol Congress has established, they must be detained while that application process plays out. 

There are actually three separate detention mandates for border migrants in the inspection protocol: one, at section 235(b)(1)(B)(iii)(IV) of the INA, for aliens without proper admission documents or who have attempted to enter through fraud and who have been subjected to “expedited removal”; a separate mandate in section 235(b)(1)(B)(ii), for border aliens in expedited removal who have been found to have a “credible fear” of return pending adjudication of their asylum applications; and a third, general one for all inadmissible applicants for admission while their removal hearings are proceeding.  

Asylum Claims as “A Default Tactic”

Nonetheless, beginning in January 2010, the Obama administration began releasing certain aliens who had been found to have a credible fear into the United States using DHS’s limited “parole” authority in section 212(d)(5)(A)(i) of the INA.

Between FY 2006 to FY 2009 — when the detention mandates were strictly enforced — just 4 to 5 percent of aliens in expedited removal claimed credible fear.  By FY 2011, the year after that parole directive was issued, credible fear claims tripled to 15 percent, and then nearly tripled again (to 44 percent) by FY 2017.

As DHS concluded in October 2019: 

The percentage of aliens subject to expedited removal who claimed a fear of return or requested asylum was once quite modest. However, over time, seeking asylum has become nearly a default tactic used by undocumented aliens to secure their release into the United States.          

Still, DOJ was forced to admit in June 2022 that prior to President Biden’s administration, most aliens encountered at the Southwest border remained in continuous detention until their claims were heard, at least up until FY 2019 (a year in which more than 55 percent of illegal entrants were adult aliens travelling with children in “family units”, whose release within 20 days was mandated under an August 2015 district court order in Flores v. Lynch).

Even then, in FY 2019, 59 percent of all aliens were at least detained for a period before they were released, while 40 percent were never detained.

By FY 2020, after the Trump administration had fully implemented “Remain in Mexico” (which denied alien families the promise of quick release into the United States), followed by CDC’s first Title 42 expulsion order in March of that year, detention was again the rule, as some 66 percent of aliens encountered at the Southwest border weren’t released until they were granted asylum or removed.

Biden changed all that, and largely ignored the detention mandates in section 235 of the INA. In FY 2021, his first partial fiscal year in office, just 10 percent of aliens encountered by CBP at the Southwest border were continuously detained, compared to 64 percent who were never detained. Most of those aliens (93.8 percent) were encountered on the current administration’s watch starting in February. 

It doesn’t appear that Biden’s CBP is even asking aliens whether they have a fear of return before releasing them.

In FY 2022, for example, just 9.6 percent of all aliens apprehended entering the United States illegally were subject to expedited removal, which would have allowed CBP to quickly remove them if they did not have credible fear claims. By contrast, CBP simply released more than 689,000 — nearly 60 percent — of the illegal migrants apprehended by Border Patrol at the U.S.-Mexico line that year.

Why Detaining Asylum Claimants Matters

There are at least four reasons why detention of inadmissible border and port migrants generally — and those claiming asylum in particular — matters and protects not just U.S. sovereignty but the asylum seekers themselves.

First, that’s what the law says DHS should be doing, as explained above. Second, Biden’s refusal to detain those migrants is simply encouraging more of them to come, and in increasing numbers, as a federal judge determined after considering more than a year’s worth of argument and discovery in Florida v. U.S. in March.

Third, when aliens are detained, their asylum claims are considered on an expedited basis. In the second quarter of FY 2023, the median time that it took for an immigration judge to complete a detained case was 42 days. According to TRAC, however, it takes more than four years for the average asylum claim in a non-detained court to even be heard.

That benefits aliens with weak, frivolous, or bogus asylum claims, who are allowed to live and work in this country until their applications are denied, but it hurts — really hurts — those with meritorious claims who must wait for years to be granted asylum.

That’s time those aliens spend in “legal limbo”, but more saliently, it impedes their ability to bring their relatives to the United States.

Section 208(b)(3) of the INA allows the spouses and children of aliens who have been granted asylum to also come to the United States in asylee status, for a simple reason — many of those individuals also face persecution threats, if not on the same bases as the principal applicant then because of their relationship to that applicant. They can’t receive that status, however, until the primary applicant’s request for asylum is approved. 

Thus, asylum abuse is not a “victimless crime”. By gumming up the asylum system with worthless or fraudulent claims, those who manipulate it for their own ends all but ensure the misery of foreign national relatives abroad.

Fourth, however, border and port aliens who are detained in ICE custody while their asylum claims are adjudicated are provided shelter (albeit in federal detention), food, clothing, laundry services, medical, dental, and psychological care, and when appropriate, education. Some also get access to beauty salons and karaoke.

The reason why nearly 100,000 migrants are jamming the streets and hotels of New York City is because the Biden administration refuses to detain them. By law, DHS is required to provide for them in detention, but Biden’s release regime is shifting those costs onto Gotham’s taxpayers.

Yes, inadmissible migrants at the Southwest border, both at and between the ports, have a right to apply for asylum. But, by law, DHS must detain all of them while those asylum claims are pending. Not only does detention satisfy Congress’ mandates, but it also protects our national sovereignty, facilitates border security, and provides benefits to the migrants themselves — especially the ones deserving of asylum.