[Originally published June 2, 2022; updated June 23, 2022.]
Why did Congress establish expedited removal in 1996? Well, first I should note that President Bill Clinton and Sen. Ted Kennedy (D-Mass.) had proposed an expedited removal, sorry, expedited exclusion, statute in 1993. Yes, President Bill Clinton and Sen. Ted Kennedy. As Casey Stengel used to say (this was before the Internet) “You could look it up.” On July 27, 1993, Clinton sent a message to Congress explaining that:
I am pleased to transmit today for your immediate consideration and enactment the “Expedited Exclusion and Alien Smuggling Enhanced Penalties Act of 1993.” This legislative proposal is designed to address the growing abuse of our legal immigration and political asylum systems by illegal aliens holding fraudulent documents and by alien smugglers. ... The expedited exclusion procedures would apply to an alien who ... attempted to use a fraudulent passport to enter the United States. ... To apply for asylum, these aliens would first have to establish that they had a credible fear ... of persecution. ... If an asylum officer determined that the alien had such a credible fear, the alien then could apply for asylum. If the alien did not have the requisite fear of persecution, the alien would be subject to an immediate order of exclusion. ... Alien smuggling not only violates our criminal and immigration laws, but it also takes a terrible toll on the lives of the aliens illegally brought into this country.
Imagine President Biden proposing such a bill today! Clinton’s proposal was introduced by Kennedy (S. 1333) and House Judiciary Committee Chairman Jack Brooks (D-Texas) (H.R. 2836). Kennedy stated on the Senate floor that:
This legislation represents a bipartisan effort to protect our asylum system from abuse and to deal with the escalating problem of alien smuggling. ... [T]he President announced ... his proposal to deal with alien smuggling and the steps needed to protect the integrity of our asylum procedures at our ports of entry from those who are arriving with no documents, fraudulent documents, or in an alien smuggling situation. ... I believe the proposed legislation strikes an appropriate balance between our Nation's need to enforce our immigration laws and our long tradition of protecting the ability of refugees to seek safe haven in the United States. ... By admitting only those persons with a substantial likelihood of winning an asylum claim, it is tough enough to curb the flagrant abuses of the smuggling syndicates while giving true refugees a fair claim at asylum. ... Mr. President, I believe the President's proposal represents a genuine, bipartisan compromise to deal with an undeniable problem-the growing abuse of our Nation's asylum laws at ports of entry by smugglers and others seeking employment in the United States. It is a measured response that protects the integrity of our asylum system. ... And hopefully it will end the ability of alien smugglers to believe they can evade our Nation's immigration laws and exploit men and women who are only seeking better lives.
Imagine Senate Majority Leader Charles Schumer (D-N.Y.) introducing such a bill today! Umm, well, he did co-sponsor a version of the legislation in 1993 (H.R. 3363) that was actually the inspiration for the expedited removal process created by a Republican Congress three years later. The House Judiciary Committee’s 1996 report specifically noted that its expedited removal provision was “based upon legislation approved by the Subcommittee on International Law, Immigration, and Refugees during the 103rd Congress”. Thanks, Mr. Schumer! The Judiciary Committee went on to explain that:
Existing procedures to deny entry to and to remove illegal aliens from the United States are cumbersome and duplicative. Removal of aliens who enter the United States illegally, even those who are ordered deported after a full due process hearing, is an all-too-rare event. The asylum system has been abused by those who seek to use it as a means of “backdoor” immigration.
[Establishing an expedited removal process] is necessary because thousands of aliens arrive in the U.S. at airports each year without valid documents and attempt to illegally enter the U.S. Unless such aliens claim to be U.S. nationals, or state a fear of persecution, there is no requirement under the Constitution or international treaty to do anything other than return them, as promptly as possible. ... Neither international law nor the Due Process Clause of the Fifth Amendment require that such aliens be given a hearing before an immigration judge or a right to appeal.
[A]n alien subject to expedited removal who claims persecution or otherwise indicates a desire to apply for asylum [shall] be interviewed by an asylum officer to determine if the alien has a “credible fear” of persecution. ... The credible fear standard is designed to weed out non-meritorious cases so that only applicants with a likelihood of success will proceed to the regular asylum process. If the alien meets this threshold, the alien is permitted to remain in the U.S. to receive a full adjudication of the asylum claim.
Well, that was the theory anyway. Foreshadowing problems to come, the GAO (now called the U.S. Government Accountability Office) reported in 2000 that, “[s]ome [immigration] judges told us that although the credible fear process was the result of a well-intentioned statute, within the current parameters the process did not seem effective because so many asylum officers were determining that aliens had a credible fear of persecution or torture.” Fast forward two decades to 2018. As the Departments of Homeland Security and Justice explained:
When the expedited [removal] procedures were first implemented ... relatively few aliens [apprehended at the border] ... asserted an intent to apply for asylum or a fear of persecution. Rather, most aliens ... were single [Mexican] adults who were immediately repatriated. ... [A]liens could be processed and removed more quickly, without requiring detention or lengthy court proceedings.
In recent years, the United States has seen a large increase in the number and proportion of inadmissible aliens subject to expedited removal who assert an intent to apply for asylum or a fear of persecution ... and are subsequently placed into removal proceedings in immigration court. Most of those aliens unlawfully enter the country between ports of entry along the southern border. Over the past decade, the overall percentage of aliens subject to expedited removal and [who assert a fear and receive a] credible-fear interview jumped from approximately 5% to above 40%, and the total number of credible-fear referrals for interviews increased from about 5,000 a year in . . . 2008 to about 97,000 in ... 2018. ... In FY 2018 ... positive credible-fear determinations [by asylum officers, preventing the expedited removal of the aliens and sending them to immigration court] climbed to about 89% of all cases. [Yet] significant proportions of aliens who receive a positive credible fear determination never file an application for asylum or [abscond and must be] ordered removed in absentia. In FY 2018, a total of [only] about 6,000 aliens who passed through credible-fear screening ([only] 17% of all completed cases ...) established that they should be granted asylum.
This abuse of credible fear is one of the root causes of our current border crisis. In any event, I have never seen the full trajectory of the increase in credible fear claims, both as an absolute number and as a percentage of all aliens placed into expedited removal. So, as a DIYer (just ask my wife!), I thought I’d put one together myself. Digging through U.S. Department of Homeland Security, U.S. Department of Justice and U.S. Government Accountability Office statistics, I came up with the following figure:
Credible Fear by Year
Note that between fiscal years 2015 and 2016, the number of credible fear case receipts and the percentage of aliens placed into expedited removal (after being apprehended by Border Patrol agents) who claimed a fear of return both doubled. Le Déluge.
The Fine Print
A few things to keep in mind:
- First, while the statutory authorization for expedited removal became effective on April 1, 1997, I could not find any reporting as to the numbers for the second half of fiscal year 1997 (April - September 1997).
- Second, the use of expedited removal was originally limited to “arriving aliens” — those coming to ports of entry and those interdicted in international waters and brought to the United States. Then, the secretary of Homeland Security, as of August 11, 2004, expanded the utilization of expedited removal to aliens encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international land border.
- Third, the reporting of credible fear (fear of return) claims, first by the Immigration and Naturalization Service and then by DHS, sometimes refers to the number of claim referrals to asylum officers for interview and sometimes to the number of case completions or determinations by asylum officers. So, year-to-year, the comparisons won’t be precisely one-to-one.
- Fourth, fear of return claims for 2022 represent my annualization of the most current figures I could find.
- Fifth, the decrease in claims in 2020-22 is not the result of a decreased level of “fear” by aliens placed into expedited removal proceedings, but rather reflect the fact that during the Covid pandemic, many illegal alien have been expelled pursuant to Title 42 rather than placed into expedited removal proceedings under Title 8.
Here is the data:
- 1998: 2,726 (credible fear interviews); (3,000 fear of return claims out of 80,000 aliens placed into expedited removal: 3.8 percent)
- 1999: 5,829 (credible fear determinations); (6,900/94,000: 7.3 percent)
- 2000: 9,726 (credible fear determinations); (10,300/96,000: 10.7 percent)
- 2001: 12,258 (credible fear determinations); (13,000/87,000: 14.9 percent)
- 2002: 9,084 (credible fear determinations); (10,000/48,000: 20.8 percent)
- 2003: 5,414 (credible fear determinations); (6,000/53,000: 11.3 percent)
- 2004: 7,917 (credible fear referrals)
- 2005: 4,712 (credible fear claims considered)
- 2006: 5,338 (credible fear referrals); (5,338/104,440 claims/aliens placed into ER — 5 percent)
- 2007: 5,252 (credible fear referrals); (5,252/100,992 claims/aliens placed into ER – 5 percent)
- 2008: 4,995 (credible fear referrals); (4,995/117,624 claims/aliens placed into ER – 4 percent)
- 2009: 5,369 (credible fear referrals); (5,369/111,589 claims/aliens placed into ER – 5 percent)
- 2010: 8,959 (credible fear referrals); (8,959/119,876 claims/aliens placed into ER – 7 percent)
- 2011: 11,368 (completions: credible fear found/not found/case closed)
- 2012: 13,880 (credible fear case receipts)
- 2013: 36,035 (credible fear case receipts)
- 2014: 51,001 (credible fear referrals); (51,001/240,908 claims/aliens placed into ER – 21 percent)
- 2015: 48,052 (credible fear referrals); (48,052/192,120 (claims/aliens placed into ER – 25 percent)
- 2016: 94,048 (credible fear referrals); (94,048/243,494 (claims/aliens placed into ER – 39 percent); (61.4 percent of aliens placed into ER make claims (Border Patrol apprehensions of members of family units ("MFU"))
- 2017: 78,564 (credible fear referrals); 78,564/178,129 (claims/aliens placed into ER – 44 percent); (61.6 percent of aliens placed into ER make claims (Border Patrol apprehensions of MFU)
- 2018: 99,035 (credible fear referrals); 99,035/234,591 (claims/aliens placed into ER – 42 percent); (56.6 percent of aliens placed into ER make claims (Border Patrol apprehensions of MFU)
- 2019: 105,439 credible fear referrals; 29.7 percent/52.5 percent Border Patrol apprehensions only (first three quarters, estimate for fourth quarter), BP apps, FMU (first two quarters)
- 2020: 30,821 credible fear referrals
- 2021: 59,155 credible fear referrals
- 2022: 50,513 (annualized: 27,363 through 4/15) (completions: credible fear found/not found/case closed)