A year ago, I wrote about a rule then recently proposed by the departments of Homeland Security and Justice titled “Circumvention of Lawful Pathways”. I noted that “in giving us the CLAP”, the departments offer “a masterclass in deception, in dissembling, in deceit ... . [that] should be required reading ... for all aspiring propagators of disinformation ... . giv[ing] us a window into the facile and slippery methods the Biden administration utilizes to justify some of its policy decisions in the immigration sphere.” Secretary Mayorkas’s department is now trying to outdo itself in the deception, dissembling, and deceit department — I guess one should always play to one’s strengths.
Let me explain. Many of you have seen the New York Post’s video of the migrant riot in El Paso, in which “a group of over 100 migrants ... rush[ed] a border wall ... breaking through razor wire and knocking over guards in the process.” But, as my colleague Andrew Arthur has observed, “what’s really appalling is what the public won’t see: Nearly all of those migrants being rewarded for their disdain for U.S. sovereignty and assault on our troops by being released to live and work here indefinitely, if not forever.” As Nick Mordowanec reported for Newsweek:
After federal agents spent four hours ... detaining and moving migrants following an attempted southern border breach in El Paso, Texas, the undocumented persons are going through processing for possible entry into the U.S.
U.S. Border Patrol agents took custody of the migrants at the adjacent border wall and transported them to the central processing station to be processed under Title 8 immigration law, prioritizing family units and children for processing and transport.
What Arthur and Mordowanec mean is that these illegal alien “clients” of DHS Secretary Alejandro Mayorkas will be given right off the bat Notices to Appear (“NTA”) in immigration court for removal proceedings or will be placed into “expedited” removal proceedings and then in all likelihood be given NTAs after demonstrating a “credible” but most likely fraudulent or unmeritorious “fear” of persecution or torture. And then DHS will release the vast majority into the United States, despite Congress’s mandate that they be detained, to possibly to show up at their removal proceedings years hence.
OK, we’ve all heard about this charade until it has numbed our minds. But where’s the promised deception, the dissembling, the deceit? Well, as Mordowanec reported, Mayorkas’s DHS assured the American public following the riot that:
“There are consequences to crossing the border illegally, and CBP [U.S. Customs and Border Protection] continues to enforce United States immigration laws,” [a CBP] spokesperson said. “Individuals and families without a legal basis to remain in the U.S. are subject to removal and are subject to a minimum five-year bar on reapplying for admission and potential criminal prosecution if they subsequently reenter without authorization.”
To be fair, we haven’t gotten to the deceit yet, because it is in fact true that “Individuals and families without a legal basis to remain in the U.S. are subject to removal and are subject to a minimum five-year bar on reapplying for admission and potential criminal prosecution if they subsequently reenter without authorization.”
Finally, here (drum roll) is the deceit: “The [CBP] spokesperson added: ‘No one should believe the lies of smugglers. Individuals and families without a legal basis to remain in the United States will be removed.’”
It is true that no one should believe the lies of smugglers. But, as I have written, “It is sadly the case that the smugglers have by and large been more truthful about the state of the border than has been the Biden administration.” Further, neither should one believe the lies of Secretary Mayorkas’s DHS, including “Individuals and families without a legal basis to remain in the United States will be removed.” This whopper involves such blatant deceit that it actually constitutes one of the allegations in the House-passed articles of impeachment against Secretary Mayorkas, that he “has knowingly made false statements ... principally to obfuscate the results of his willful and systemic refusal to comply with the law”. The second article of impeachment alleges that Mayorkas has “engaged in this scheme or course of conduct through means” including “knowingly ma[king] false statements that apprehended aliens with no legal basis to remain in the United States were being quickly removed”.1
Let’s unpack this. First, I should note that what Mayorkas/DHS mean by “without a legal basis to remain in the United States” is that an alien has been actually found removable and ordered removed, either in the expedited removal process or by an immigration judge. What Mayorkas/DHS don’t tell you is that the large majority of aliens apprehended at the border and placed into expedited removal proceedings cannot actually be expeditiously removed because they have been found to have a “credible fear” of persecution or torture. As Andrew Arthur has recently explained:
The express purpose of [expedited removal is] to speed the deportation of aliens seeking to enter illegally and to curb abuse of our generous asylum system by aliens simply coming to work.
The expedited removal process ... allows CBP to quickly deport illegal aliens encountered at the borders and the ports without first obtaining a removal order from an immigration judge (IJ) following removal proceedings ... which is required for most other removable aliens.
Expedited removal, however, comes with a “catch”. That catch requires ... aliens subject to expedited removal who express a fear of harm or just ask for asylum to [be referred to] Asylum Officers (AOs) ... for what is known as a “credible fear” interview.
The “credible fear” standard is low, defined by statute as “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.
At the end of that informal interview, the AO issues a determination as to whether the alien's claim of fearing return to his country is credible. Generally, if the AO issues a “positive credible fear determination”, the alien is referred to an IJ to apply for asylum in removal proceedings, but when an AO makes a “negative credible fear determination”, the alien can either ask for an IJ to review that decision or be removed.
According to DOJ statistics, 81 percent of aliens subject to expedited removal who claimed a fear of harm or requested asylum between FY 2008 and the fourth quarter of FY 2019 received positive credible fear determinations from AOs, and an additional 2 percent who sought IJ reviews of negative determinations were also found to have credible fear — 83 percent in total.
Mayorkas/DHS also don’t tell you that most aliens found to have a credible fear in actuality have made bogus or unmeritorious claims. Well, their press offices don’t tell you, but if you happen to be a regular reader of the Federal Register, you would know that even Secretary Mayorkas sort of admits this to be the case. He (along with Attorney General Merrick Garland) wrote last year that of aliens placed in expedited removal proceedings and found to have a credible fear of persecution, and thus referred to immigration judges for removal proceedings, “significantly fewer than 20 percent ... were ultimately granted asylum” and only “28 percent of cases decided on their merits are grants of relief”. Mayorkas and Garland went on to acknowledge that:
[M]any individuals who avail themselves of the credible fear process do not have meritorious claims.
[M]ost people processed for expedited removal ... will likely establish credible fear and remain in the United States for the foreseeable future despite the fact that many of them will not ultimately be granted asylum.
[T]he current asylum system — in which most migrants who are initially deemed eligible to pursue their claims ultimately are not granted asylum in the subsequent ... removal proceedings — has contributed to a growing backlog of cases awaiting review by asylum officers and immigration judges.
[T]hose who have a valid claim to asylum in the United States often have to wait years for a final protection decision. Conversely, noncitizens ultimately found ineligible for asylum or another form of protection are likely to spend many years in the United States prior to being ordered removed.
The fact that large numbers of migrants pass the credible fear screening, only to be denied relief or protection on the merits after a lengthy adjudicatory process, has high costs to the system in terms of resources and time.
In fact, as DHS and DOJ reported in 2018, “significant proportions of aliens who receive a positive credible-fear determination never [even] file an application for asylum or are ordered removed in absentia”.
What happens to aliens who are found to have a credible fear, or to those who are not put into “expedited” proceedings in the first place and are simply given NTA’s? They enter a metaphorical supermassive black hole. Well, the metaphor sort of breaks down here because while not even light itself can escape the gravitational field of a black hole, many such aliens do escape our immigration system, since after being ordered removed in absentia they simply become fugitives from the law. As DHS explained in 2018:
[Many] aliens claiming credible fear ... know it will give them an opportunity to stay in our country, even if they do not actually have a valid claim to asylum. As a result, the United States has an overwhelming asylum backlog. ... Most of these claims are not meritorious ... . However, by the time a judge has ordered them removed from the United States, many have vanished.
And as the House Homeland Security Committee’s impeachment report further explains:
During Secretary Mayorkas’ tenure, the immigration court backlog has more than doubled from about 1,300,000 cases to over 3,000,000 cases. The backlog is destroying the courts’ ability to administer justice and provide appropriate relief in a timeframe that does not run into years or even decades. As Secretary Mayorkas acknowledged, ‘‘those who have a valid claim to asylum ... often wait years for a ... decision; likewise, noncitizens who will ultimately be found ineligible for asylum or other protection — which occurs in the majority of cases — often have spent many years in the United States prior to being ordered removed.” In the [CLAP, Secretary Mayorkas even] admits that “the fact that migrants can wait in the United States for years before being issued a final order denying relief, and that many such individuals are never actually removed, likely incentivizes migrants to make the journey north.’’
Mr. Nolan Rappaport, former chief democratic counsel for the House Judiciary Committee’s Immigration Subcommittee, has written that:
[T]he [Biden] administration caused a border crisis by releasing unprecedented numbers of undocumented migrants into the country — and Congress can’t fix that.
This has resulted in an immigration court backlog that is so large, it severely limits the court’s ability to adjudicate asylum applications, with some migrants waiting as long as 10 years for a hearing. The right to apply for asylum is meaningless if the immigration court can’t adjudicate their applications.
The backlog also severely limits the court’s ability to conduct removal proceedings. Illegal border crossers are essentially safe from deportation once they have reached the interior of the country, and they can keep trying until they succeed.
The immigration court has more than 700 judges ... But, the Congressional Research Service estimated ... that it would take 1,349 judges 10 years to clear the backlog, which was only 1,979,313 cases when [it] made that calculation ... .
The backlog has gotten so large that the average wait for an initial master calendar hearing for pleadings and to schedule an individual hearing on the merits of the case is four years. A final decision frequently takes years after that.
Mr. Rappaport ruefully concluded that, ‘‘I am afraid that if a solution isn’t found soon, the only way to end the backlog will be to suspend consideration of asylum applications.”
Is it true that many aliens ordered removed by immigration judges actually vanish? Well, it depends on whether they are detained or not. If an alien is being detained, he or she will most likely be removed, and if an alien is not being detained, he or she most likely will never be removed. The House Committee on Homeland Security’s impeachment report notes that:
[A]s the Supreme Court has explained ... ‘‘one of the major causes of the ... failure to remove deportable ... aliens was the agency’s failure to detain those aliens during their deportation proceedings.’’
DHS itself verified Congress’s concerns in its FY 2021 Enforcement Lifecycle Report, that amply demonstrated that (regarding aliens encountered at the Southwest border) continuously detained aliens have historically almost always been repatriated, while nondetained aliens have rarely been:
- Of aliens encountered at the Southwest border in fiscal year 2013, DHS returned or removed 98.4 percent of those who were continuously detained as of December 31, 2021, but only 6.9 percent of those who were sometimes detained, and 15.1 percent of those who were never detained. Of those continuously detained, only 0.7 percent had an unexecuted removal order, while 23.2 percent of those sometimes detained and 12.6 percent of those never detained had unexecuted orders.
- For fiscal year 2014, the comparable repatriation percentages were 98.5 percent as compared to 9.2 percent and 8.1 percent, and the comparable unexecuted removal order percentages were 0.2 percent as compared to 25.3 percent and 26.3 percent.
- For fiscal year 2015, the comparable repatriation percentages were 98.2 percent as compared to 11.1 percent and 10.3 percent, and the comparable unexecuted removal order percentages were 0.3 percent as compared to 24.2 percent and 21.6 percent.
- For fiscal year 2016, the comparable repatriation percentages were 97.4 percent as compared to 4.0 percent and 10.1 percent, and the comparable unexecuted removal order percentages were 1.1 percent as compared to 22.8 percent and 24.4 percent.
- For fiscal year 2017, the comparable repatriation percentages were 97.3 percent as compared to 2.8 percent and 6.0 percent, and the comparable unexecuted removal order percentages were 1.1 percent as compared to 20.5 percent and 25.8 percent.
- For fiscal year 2018, the comparable repatriation percentages were 97.0 percent as compared to 2.1 percent and 5.4 percent, and the comparable unexecuted removal order percentages were 1.8 percent as compared to 18.0 percent and 25.2 percent.
- For fiscal year 2019, the comparable repatriation percentages were 94.7 percent as compared to 2.2 percent and 7.9 percent, and the comparable unexecuted removal order percentages were 4.8 percent as compared to 11.4 percent and 15.1 percent.
I reported on this shocking data last May.
And, of course, there is nothing Secretary Mayorkas hates more than to detain aliens, even when mandated by Congress to do so, which is one of the prime bases for the articles of impeachment against him. As the impeachment report finds:
Secretary Mayorkas made it clear early on in his tenure that he disagreed with congressional detention mandates, testifying before the House Appropriations Subcommittee on Homeland Security that he was “concerned about the overuse of detention, and where alternatives to detention, ATD, would suffice ... we will indeed be looking at that and executing accordingly.[”]
All told, under Secretary Mayorkas, DHS has released at least 3.3 million aliens into the United States, most of whom are subject to mandatory detention. Secretary Mayorkas shows no sign of slowing down his refusal to comply with the law. In fact, in December 2023, a DHS official admitted that “an average of 5,000 illegal aliens are currently being released into the United States each day at the border.” Secretary Mayorkas admits that most aliens at the border are being released, telling USBP agents that 85% of aliens at the border are released and later telling a reporter that over 70% of aliens are released at the border every day and well over one million aliens are released into the U.S. annually.
OK, so non-detained aliens “without a legal basis to remain in the United States” are in general not being removed. But what about those apprehended at the border and placed into expedited removal proceedings but who were inexplicably not instructed by their smugglers to claim a fear of return, or were unlucky enough to claim a fear that was not found to be “credible”? Surely, Mayorkas’s DHS has removed all or most of them?! Well, remember that the articles of impeachment allege that “Secretary Mayorkas knowingly made false statements that apprehended aliens with no legal basis to remain in the United States were being quickly removed.” The impeachment report explains that:
Secretary Mayorkas knowingly made false statements that apprehended aliens with no legal basis to remain in the United States were being quickly removed, such as a claim in April 2023 that “[t]hose who arrive at our border and do not have a legal basis to stay ... will be removed most often in a matter of days and just a few weeks’’ and one in May 2023 that he and DHS were ‘‘making it very clear that our border is not open, that crossing irregularly is against the law, and that those who are not eligible for relief will be quickly returned.’’ However, of those aliens placed into expedited removal proceedings since January 21, 2021, who were not found to have a credible fear of persecution and thus immediately removable, ‘‘roughly 40 percent were not removed and remained in the United States as of August 31, 2023.’’
No matter how low one sets expectations, Secretary Mayorkas’s DHS simply can’t seem to meet them. I think we are going to need to come up with a new slogan: “No Department Left Behind!”
End Note
1 In full disclosure, I note that, during an unpaid leave of absence from the Center, I had the great privilege of serving for a few months as a special counsel for Chairman Mark Green of the House Committee on Homeland Security to assist with the impeachment inquiry and proceedings against Secretary Mayorkas.