'Border Surge' Is a Feature, Not a Bug, of Biden's Asylum Policies

By Andrew R. Arthur on June 28, 2022

Real Clear Policy, June 28, 2022

On May 26, the Wall Street Journal editorial board questioned why the Biden administration would repeal expulsion orders for illegal migrants at the Southwest border, issued under Title 42 of the U.S. Code in response to the Covid-19 pandemic knowing that repeal would “lead to a border surge.” The answer is that deterring illegal entry — the policy of every prior administration — isn’t policy under the current one, which is instead focused on ensuring that every foreign national who makes it here can apply for asylum in the United States.

The administration has been clear about this. On May 1, Secretary of Homeland Security Alejandro Mayorkas appeared on “Fox News Sunday,” where anchor Bret Baier asked the secretary whether it is “the objective of the Biden administration to ... sharply reduce the total number of illegal immigrants coming across the southern border?”

Mayorkas responded: “It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system.” That wasn’t a non sequitur, but rather a clear expression of the administration’s policy: Reducing illegal migration is not the administration’s goal; providing “access to our legal system” for illegal immigrants is. That requires some explanation.

The editorial board noted that one of Mayorkas’ “replacement policies for Title 42” is “expedited removal”. Expedited removal sounds like a way to rapidly expel illegal entrants, and that was what Congress intended it to be when it created the process in 1996, but over the past decade it has instead become a gateway into America.

Expedited removal allows DHS to remove aliens who have entered illegally or without proper documents without obtaining a removal order from an immigration judge. There is an exception to that removal process for aliens who request asylum or claim a fear of return. DHS must refer them to an asylum officer to determine whether they have a “credible fear”, that is whether they may be eligible for asylum.

Credible fear is a screening standard, so the burden on the alien is not high. Between FY 2008 and the fourth quarter of FY 2019, asylum officers found that 81 percent of aliens who claimed fear cleared the credible fear hurdle, as did immigration judges on review in an additional two percent of cases — 83 percent total. Just 14 percent of aliens who claimed credible fear during that period were granted asylum, however.

That said, credible fear claims were rare for more than a decade after expedited removal was first implemented. That’s because the expedited removal provision mandates that aliens subject to the process be detained, from apprehension until their asylum applications were adjudicated.

That changed in December 2009, when the then-director of Immigration and Customs Enforcement ordered most aliens who had received a positive credible fear determination released under what had previously been a rarely used authority known as “parole”.

Between FY 2006 and 2009, before that parole directive was issued, just four to five percent of aliens in expedited removal were referred for credible fear interviews. That jumped to 15 percent by FY 2013 and to 44 percent in FY 2017, as smugglers concluded credible fear claims would ensure their “clients’” release into the United States.

The Trump administration responded to this abuse of humanitarian relief in 2019 by returning asylum claimants back across the border to await their asylum hearings under its Migrant Protection Protocols (MPP, better known as “Remain in Mexico”) program.

The Biden administration is fighting in the Supreme Court to end MPP, and though it’s implementing MPP under court order, it’s on a much smaller scale than before. More than 70,000 were returned to Mexico under Trump, while just 199 were subject to MPP in March — a month in which DHS released 80,000-plus arriving aliens at the Southwest border into the United States.

Nor does it appear that DHS is screening most migrants for credible fear before releasing them. Rather, it is giving parolees up to a year to settle in before showing up at ICE to start the process.

While some illegal migrants have asylum claims, most don’t. The Biden administration, however, is treating all as “asylum seekers” — and wants to end Title 42 to give them the chance to seek asylum. That will just encourage more “irregular migrants” to enter. The “border surge” is not a bug — it’s a feature.