Abstract: There is growing recognition that the gargantuan 2.6 million case backlog in our immigration courts (largely generated by the Biden administration's disastrous policies) is crippling the courts. Calls are even coming from commentators who cannot be described as restrictionist to suspend the admission of all asylum seekers crossing the border illegally until the backlog can be shrunk. Unfortunately, a 2018 Trump administration proclamation attempting to do just that was stopped by a poorly reasoned circuit court ruling. While that ruling stands, any similar approach will be ineffectual.
- Nolan Rappaport, former chief counsel for the Democrats on the House Judiciary Committee’s immigration subcommittee, argues that the immigration court backlog, now at over 2.6 million cases, “has gotten so large that we may have to ... suspend the admission of asylum seekers who come here unlawfully”. And noted journalist and commentator Fareed Zakaria argues that the “only” solution to our immigration crisis is for President Biden to take Rappaport’s advice “while the system digests the millions of immigration cases already pending”. But could a President actually “suspend the admission of asylum seekers” in a manner that would actually combat Biden’s border crisis and the immigration court mega-backlog?
- Section 212(f) of the Immigration and Nationality Act does allow the president — if finding “that the entry of any aliens or of any class of aliens ... would be detrimental to the interests of the United States” — to “by proclamation ... suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants”. President Trump famously utilized § 212(f) to bar the entry of aliens from certain countries in order to enhance vetting capabilities for detecting the attempted entry into the U.S. by terrorists or other public-safety threats. The Supreme Court upheld this suspension, concluding that the § 212(f) power “exudes deference to the President in every clause ... [and] vests [him] with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA”.
- But what happens when aliens ignore such a proclamation and enter the U.S. anyway? DOJ and DHS during the Trump administration noted that they “generally would be placed in expedited-removal proceedings ... allow[ing] the[m] to raise any claims for protection before being removed from the United States” or otherwise “still apply for asylum”. But these are the same broken proceedings that are utterly failing us. The aliens who “pay cartels to help them cross the border illegally, present themselves as asylum seekers, and slip into the country while their cases are being adjudicated” (Zakaria) would continue to be placed in the same “expedited release onto our streets” (Fishman) process, and it would remain “utterly impossible for the already overwhelmed immigration court to keep up with its caseload” (Rappaport). Even Biden administration DHS Secretary Alejandro Mayorkas and Attorney General Merrick Garland admit that “most people processed for expedited removal ... will likely establish credible fear and remain in the United States” “for years before their asylum ... claim could be adjudicated”, with the expectation of a lengthy stay ... regardless of the merit of an individual’s case, risk[ing] driving even more [illicit] migration”.
Thus, a § 212(f) proclamation would be totally ineffectual in terms of addressing the crisis at our southern border unless it can lead to aliens who ignore its terms and enter the U.S. anyway actually being expeditiously removed. This is exactly what the Trump administration attempted to do in 2018, when:
- President Trump issued a presidential proclamation providing that “[t]he entry of any alien ... across the [southern border] is hereby suspended ... [unless] at a port of entry”.
- DOJ and DHS promulgated a regulation making aliens ineligible for asylum who were “subject to a presidential [§ 212(f)] proclamation ... suspending [their entry] along the southern border [unless at a port of entry] ... and [who nonetheless] enter ... contrary to the terms of the proclamation”, based on the INA’s grant of power to the departments to “establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum”.
- The 9th Circuit enjoined the regulation in an utterly indefensible decision. The Trump administration sought a rehearing en banc in October 2020, which the Circuit rejected in April 2021, and the Biden administration did not pursue the matter. Unfortunately, as long as the court’s decision stands, § 212(f) will sadly be ineffectual in terms of curbing the crisis along our southern border — except to the extent that a president uses it to establish a naval blockade or other means of preventing prospective illegal migrants from entering the U.S. in the first place.
Recently, the noted journalist and political and foreign affairs commentator Fareed Zakaria, himself an Indian immigrant, wrote in the Washington Post that:
There is only one solution to th[e immigration] crisis, as Nolan Rappaport, a longtime congressional expert on the issue, has suggested: The president must use the power he has in existing law to suspend entirely the admission of asylum seekers while the system digests the millions of immigration cases already pending.
What crisis is Zakaria referring to? As he wrote:
Apprehensions at the southern border are surging again. Texas border towns have long been inundated by the waves of arrivals, but now that migrants are being bused into cities such as New York, Chicago, and D.C., local governments there are facing backbreaking expenses to house them. New York Mayor Eric Adams (D) was exaggerating only slightly when he said the problem would “destroy” the city.
[M]any [illegal migrants] seem to have decided that it would be simpler to pay cartels to help them cross the border illegally, present themselves as asylum seekers, and slip into the country while their cases are being adjudicated. In a 17-month period between March 2021 and August 2022, the federal government released more than 1 million migrants [citing the Department of Homeland Security’s (“DHS”) Office of the Inspector General] into the United States and lost track of over 177,000 of them [citing NBC News] who had failed to give an address or had provided an invalid one.
And who is Nolan Rappaport, and what did he suggest? First, I should disclose that I served with Rappaport (who, years ago, was my Democrat counterpart on the House Judiciary Committee’s immigration subcommittee). I know Nolan Rappaport. Nolan Rappaport is a friend of mine. I’m no Nolan Rappaport.
In any event, in April, Rappaport wrote in the Hill that:
[Secretary of Homeland Security Alejandro] Mayorkas [has] release[ed] so many asylum seekers into the country that it is utterly impossible for the already overwhelmed immigration court to keep up with its caseload.
At the beginning of the Biden administration, the immigration court backlog was around 1.3 million cases [citing the Transactional Records Access Clearinghouse at Syracuse University (“TRAC”)]. Two years later, it had risen to 2.1 million cases [citing TRAC, which now reports a backlog of over 2.6 million cases]. The average asylum case will take about 4.2 years [citing the Wall Street Journal] to complete. And these numbers do not include the migrants Mayorkas has let into the country who haven’t yet been put in removal proceedings.
The backlog has gotten so large that we may have to ... suspend the admission of asylum seekers who come here unlawfully.
There may not be an alternative to suspending the admission of new asylum seekers — like the UK plans to do — to give the immigration court a chance to catch up.
How could we suspend the admission of new asylum seekers? Essentially, we would have to 212(f) our asylum system.
Rappaport explained that:
US asylum law allows the president to suspend the admission of asylum seekers: [Immigration and Nationality Act] INA section (f) provides the president with virtually unlimited power to suspend the admission of any migrant, or any class of migrants. The Supreme Court has held that the sole prerequisite to exercising this power is that the president must find that the entry of the covered migrants “would be detrimental to the interests of the United States.”
Section 212(f) of the INA provides that:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The scope of 212(f) is indeed extraordinary. In the Supreme Court’s 2018 decision in Trump v. Hawaii, the Court concluded in regards to President Trump’s September 24, 2017, proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”, pejoratively pegged as a “Muslim ban”, that:
[President Trump] lawfully exercised [his] discretion [under §212(f)] based on his findings ... that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.
[President Trump’s p]roclamation is squarely within the scope of Presidential authority under the INA.
[T]he language of §(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority.
The Court further explained that:
By its plain language, §(f) grants the President broad discretion to suspend the entry of aliens into the United States.
§(f) exudes deference to the President in every clause ... . It is therefore unsurprising that we have previously observed that §(f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA ... . ([citing Sale v. U.S., in which the Court found] it “perfectly clear” that President Reagan could “establish a naval blockade” to prevent illegal migrants from entering the United States).
Th[e] premise [that the President must explain the finding of that entry would be detrimental to the interests of the United States with sufficient detail to enable judicial review] is questionable ... . But even assuming that some form of review is appropriate, plaintiffs’ attacks on the sufficiency of [President Trump’s] findings cannot be sustained. The 12-page Proclamation — which thoroughly describes the process, agency evaluations, and recommendations underlying the President’s chosen restrictions — is more detailed than any prior order ... under §(f). [In 1996] President Clinton ... explain[ed] in one sentence why suspending entry of members of the Sudanese government and armed forces “is in the foreign policy interests of the United States” ... [and in 1981] President Reagan ... explain[ed] in five sentences why measures to curtail “the continuing illegal migration by sea of large numbers of undocumented aliens into the southeastern United States” are “necessary”… .
Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§212(f)] authority.” ... And when the President adopts “a preventive measure ... in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.”
The Court dismissed a narrow reading of “class” in the context of § 212(f):
Plaintiffs argue that “class” must refer to a well-defined group of individuals who share a common “characteristic” apart from nationality ... . But the text ... does not say that, and the word “class” comfortably encompasses a group of people linked by nationality. Plaintiffs also contend that the class cannot be “overbroad.”... But that simply amounts to an unspoken tailoring requirement found nowhere in Congress’s grant of authority to suspend entry of not only “any class of aliens” but “all aliens.”
Presidents have repeatedly suspended entry not because the covered nationals themselves engaged in harmful acts but instead to retaliate for conduct by their governments that conflicted with U. S. foreign policy interests ... . And while some of these reprisals were directed at subsets of aliens from the countries at issue, others broadly suspended entry on the basis of nationality due to ongoing diplomatic disputes.
Importantly, the Court concluded that the availability of § 212(f) is not limited to “emergency” situations:
[N]o Congress that wanted to confer on the President only a residual authority to address emergency situations would ever use language of the sort in §(f). Fairly read, the provision vests authority in the President to impose additional limitations on entry beyond the grounds for exclusion set forth in the INA — including in response to circumstances that might affect the vetting system or other “interests of the United States.”
While the Court stated in making this determination that “Given the clarity of the text, we need not consider ... extra-textual evidence,” it went on to note that:
[P]laintiffs suggest that the President’s suspension power should be limited to exigencies where it would be difficult for Congress to react promptly. Precursor provisions enacted during the First and Second World Wars confined the President’s exclusion authority to times of “war” and “national emergency.” ... When Congress enacted §(f) in 1952, plaintiffs note, it borrowed “nearly verbatim” from those predecessor statutes, and one of the bill’s sponsors affirmed that the provision would apply only during a time of crisis. According to plaintiffs, it therefore follows that Congress sought to delegate only a similarly tailored suspension power in §(f).
If anything, the drafting history suggests the opposite. In borrowing “nearly verbatim” from the pre-existing statute, Congress made one critical alteration — it removed the national emergency standard that plaintiffs now seek to reintroduce in another form. Weighing Congress’s conscious departure from its wartime statutes against an isolated floor statement, the departure is far more probative.
Congress’ intent on this point need not be surmised from the manner in which it modified prior provisions. Its intent was crystal clear. On April 25, 1952, during House floor consideration of H.R. 5678, to be enacted as the (McCarran-Walter) Immigration Act of 1952, the bill’s author, Francis Walter, entered into a debate regarding Abraham Multer’s amendment to limit the grant of the suspension of entry power now found at § 212(f).
Multer stated that:
[T]he bill ... provides that at any time the President finds the entry of any aliens or class of aliens would be detrimental to the interests of the United States he may by proclamation suspend the entry of those aliens. The first part of my amendment simply provides that instead of being able to do that at any time, the President may make a proclamation and effectuate such a suspension only in the event of a national emergency, or a state of war.
Walter responded that:
I rise in opposition to the amendment ... . [T]his language ... is absolutely essential because when there is an outbreak of an epidemic in some country, whence these people are coming, it is impossible for Congress to act. People might conceivably in large numbers come to the United States and bring all sorts of communicable diseases with them. More than that, suppose we have a period of great unemployment? In the judgment of the committee, it is advisable at such times to permit the President to say that for a certain time we are not going to aggravate that situation.
Emmanuel Celler, chairman of the House Judiciary Committee, stated in support of the amendment that:
Under the bill, as proposed, the President is given an untrammeled right, an uninhibited right to suspend immigration entirely. That is very broad power. There is no restriction upon his power. There is no statement that as a condition precedent for the exercise of such· power there has to be a state of national· emergency, either declared by the Congress or by the President himself. A state of war is not needed. He can simply, by fiat, by a stroke of the pen, say, “There shall be no immigration into this land of ours.” That is what I call, and our founding fathers have always called, government by man, not government by law.
I am firmly of the conviction ... that the President ... should not have such tremendous power, summarily to cut off immigration on any kind of grounds that might actuate him.
[T]here should be some limitation upon the President's power ... to say, “No immigrants shall hereafter enter the country,” for any period that he may see fit ... . He may do it for his entire tenure of office ... . [Y]ou are giving to the President a blank check, and he can fill in the details as he will.
In spite of the concerns of Reps. Multer and Celler, the House decisively defeated the Multer amendment, putting itself clearly on record that the suspension provision — now § 212(f) — contains no “national emergency” limitation. In fact, per Rep. Walter, it was “absolutely essential” that there be no such limitation.
However, the Supreme Court in Hawaii did read one limitation into the provision, stating that “We may assume that §(f) does not allow the President to expressly override particular provisions of the INA,” and later that “Because plaintiffs do not point to any contradiction with another provision of the INA, the President has not exceeded his authority under” the section.
So, the president’s suspension power is extremely broad. But what does it mean to “suspend entry”? First, we have to determine what “entry” means.
The Supreme Court noted in Hawaii that “the concepts of entry and admission ... are used interchangeably in the INA. See §(a)(13)(A) (defining ‘admission’ as the ‘lawful entry of the alien into the United States’).” The definition states in full that “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Thus, it is lawful entry that the INA equates with admission.
But what of unlawful entry? “Entry” is currently an undefined term in the INA, but this was not always the case. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), INA § 101 provided in relevant part that, except regarding lawful permanent residents, “The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise.” As the House Judiciary Committee report explained, IIRIRA “replac[ed] the definition of ‘entry’ with a definition for ‘admission’ and ‘admitted’: the entry of an alien into the United States after inspection and authorization by an immigration officer.” Further, the committee explained that:
This ... is intended to replace certain aspects of the current ‘entry doctrine,’ under which illegal aliens who have entered the United States without inspection gain equities and privileges in immigration proceedings that are not available to aliens who present themselves for inspection at a port of entry. Hence, the pivotal factor in determining an alien's status will be whether or not the alien has been lawfully admitted.
[The bill] will conform the grounds of inadmissibility ... with the new doctrine of “admission” ... . Currently, aliens who have entered without inspection are deportable ... . Under the new “admission” doctrine, such aliens will not be considered to have been admitted, and thus, must be subject to a ground of inadmissibility, rather than a ground of deportation, based on their presence without admission. (Deportation grounds will be reserved for aliens who have been admitted to the United States.)
As the 9th Circuit explained in its 2004 decision in Sidhu v. Ashcroft:
[Prior to IIRIRA,] “excludable” aliens, those seeking admission from outside the United States, were entitled to fewer procedural protections than “deportable” aliens, those already physically present in the United States ... . Once an alien effected an “entry” ... regardless of whether the entry was lawful or not, the relatively greater protections of deportation proceedings were required.
As I have discussed elsewhere, a strange conception of “entry” has developed in the Board of Immigration Appeals (BIA) and certain U.S. Courts of Appeal (of course including the 9th Circuit (see Sidhu)).1 The BIA explained in its pre-IIRIRA 1991 decision in Matter of Patel that:
[The INA] generally defines “entry” as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession.” This Board has fashioned a more precise definition of entry, requiring: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2)(a) inspection and admission by an immigration officer or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint.
“Freedom from official restraint”? As the 9th Circuit explained in its 2002 decision in United States v. Gonzalez-Torres:
To “enter,” an alien must cross the United States border free from official restraint ... . An alien is under “official restraint” if, after crossing the border without authorization, he is “deprived of [his] liberty and prevented from going at large within the United States.” ... An alien does not have to be in the physical custody of the authorities to be officially restrained; rather, the concept of official restraint is interpreted broadly ... . “[T]he restraint may take the form of surveillance, unbeknownst to the alien.” ... When under surveillance, the alien “has still not made an entry despite having crossed the border with the intention of evading inspection, because he lacks the freedom to go at large and mix with the population.” ... On the other hand, if an alien is not discovered until some time after exercising his free will within the United States, he has entered free from official restraint.
And as the 2nd Circuit explained in its 1990 decision in Correa v. Thornburgh:
“Freedom from official restraint” means that the alien who is attempting entry is no longer under constraint emanating from the government that would otherwise prevent her from physically passing on. Although physical movement may evidence that such freedom has been acquired, it is not a necessary component as long as the alien is free physically to enter the United States openly or surreptitiously. [Emphasis in original.]
Even DHS and DOJ during the Trump administration acquiesced to the “freedom from official restraint” doctrine, stating that:
[T]the term “entry,” which has a longstanding definition in immigration law, generally requires physical presence in the United States free from official restraint, after inspection and admission at a port of entry or intentional evasion at or outside of a port of entry.
Because “entry” requires more than mere physical presence ... an alien can physically cross the border of the United States and still be merely “attempting” to enter the United States because, for example, he or she has not yet obtained freedom from official restraint.
Now that we know what “entry” means, what does it mean to “suspend” entry? First, in Hawaii, the Supreme Court dismissed a narrow temporal reading of “suspend” in the context of § 212(f):
[T]he word “suspend” often connotes a “defer[ral] till later[.]”... But that does not mean that the President is required to prescribe in advance a fixed end date for the entry restrictions. Section (f) authorizes the President to suspend entry “for such period as he shall deem necessary.” It follows that when a President suspends entry in response to a diplomatic dispute or policy concern, he may link the duration of those restrictions, implicitly or explicitly, to the resolution of the triggering condition ... . In fact, not one of the 43 suspension orders issued prior to this litigation has specified a precise end date.
Thus, to “suspend the entry” of an alien into the United States means to suspend for such period as the president shall deem necessary the alien’s ability to 1) lawful enter “after inspection and authorization by an immigration officer”, and 2) (in the BIA and certain Circuits) to unlawfully enter by physically crossing into U.S. territory through the actual and intentional evasion of inspection while being free from official restraint.
OK, the first part makes sense. Immigration officers cannot allow aliens to enter whose entry has been suspended pursuant to a § 212(f) proclamation. But the second part is a more inscrutable. What happens if an alien chooses to ignore the inconvenient fact that their entry has been suspended and enters anyway? Well, for starters, the alien can be removed as inadmissible on the basis of being “present in the United States without being admitted or paroled, or who arrives ... at any time or place other than as designated” or “not in possession of a valid” entry document — and may even qualify for “expedited removal”. In addition, they have committed a federal crime. Section 275 of the INA provides that:
Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined ... or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined ... or imprisoned not more than 2 years, or both.
But what value added does a § 212(f) proclamation bring in the case of an alien who ignores a proclamation and enters anyway? What happens if, as the Department of Justice (DOJ) and DHS stated, “[a]n alien whose entry is suspended or restricted under ... a [§ 212(f)] proclamation ... nonetheless reaches U.S. soil”? The answer, according to the departments, is that:
[The alien] would remain subject to various procedures under immigration laws. For instance, an alien subject to a proclamation who nevertheless entered the country in contravention of its terms generally would be placed in expedited-removal proceedings ... and those proceedings would allow the alien to raise any claims for protection before being removed from the United States, if appropriate. Furthermore, the asylum statute provides that “[a]ny 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),” and “irrespective of such alien’s status, may apply for asylum[”]... . Some past proclamations have accordingly made clear that aliens subject to an entry bar may still apply for asylum if they have nonetheless entered the United States.
So, the aliens that Zakaria and Rappaport are concerned about — those who “pay cartels to help them cross the border illegally, present themselves as asylum seekers, and slip into the country while their cases are being adjudicated” — if they ignore the suspension of their entry under a § 212(f) proclamation will be placed into expedited removal proceedings in which they can raise a claim for “protection” or, if placed directly into removal proceedings in immigration court, request asylum. But this is the same broken system that has led to our current predicament, in which it is “utterly impossible for the already overwhelmed immigration court to keep up with its caseload” of literally millions of cases!
Let me explain. My then-boss Lamar Smith, chairman of the House Judiciary Committee’s immigration subcommittee and author of H.R. 2202, the House foundation for IIRIRA, and my subcommittee colleague, Ed Grant, wrote in 1997, shortly after IIRIRA’s enactment, that the intent of IIRIRA’s expedited removal process was to “to deter alien smuggling and other attempts to enter the United States illegally, and to prevent abuse of the asylum system by providing full hearings only to those applicants who have a reasonable possibility of being granted asylum”. As DHS and DOJ similarly explained during the Trump administration, “Congress, concerned with rampant delays in proceedings to remove illegal aliens, created expedited procedures ... . aimed at facilitating the swift removal of inadmissible aliens, including those who had entered illegally, while also expeditiously resolving any asylum claims.”
In its 2020 decision in DHS v. Thuraissigiam, the Supreme Court discussed the creation of expedited removal:
[T]here [are] 1,066,563 pending removal proceedings ... . During the time when removal is being litigated, the alien will either be detained, at considerable expense, or allowed to reside in this country, with the attendant risk that he or she may not later be found ... .
Congress addressed these problems by providing more expedited procedures for certain “applicants for admission.” ... (1) [who are] inadmissible because [they] lack a valid entry document; (2) ha[v]e not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) is among those whom [DHS] has designated for expedited removal ... . Once “an immigration officer determines” that a designated applicant “is inadmissible,” “the officer [must] order the alien removed from the United States without further hearing or review.”
Applicants can avoid expedited removal by ... “indicat[ing] either an intention to apply for asylum” or “a fear of persecution[.]” [Then,] the immigration officer “shall refer the alien for an interview by an asylum officer.”... The point of this screening interview is to determine whether the applicant has a “credible fear of persecution.”... a “significant possibility” that the alien would be eligible [for asylum] ... .
If the asylum officer finds an applicant’s asserted fear to be credible, the applicant will receive “full consideration” of his asylum claim in a standard removal hearing [yes, in the immigration courts that currently have a 2.6 million case backlog].
The House Judiciary Committee report explained that “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.”
Well, that was the theory as to how expedited removal would work. As I have discussed, and as I will now have DOJ and DHS (during the Trump administration) explain, what has actually happened is that:
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.
Lest you think these contentions are “just by the Trump administration”, they are shared by the Supreme Court and even by President Biden’s Secretary of Homeland Security Alejandro Mayorkas and Attorney General Merrick Garland themselves!
The Supreme Court concluded in Thuraissigiam that:
[T]he credible-fear process and abuses of it can increase the burdens currently “overwhelming our immigration system.”… The past decade has seen a 1,883% increase in credible-fear claims, and in 2018 alone, there were 99,035 claims…. The majority have proved to be meritless. Many applicants found to have a credible fear—about 50% over the same 10-year period—did not pursue asylum…. In 2019, a grant of asylum followed a finding of credible fear just 15% of the time…. Fraudulent asylum claims can also be difficult to detect, especially in a screening process that is designed to be expedited and that is currently handling almost 100,000 claims per year.
The result? As the Court concluded, “the great majority of asylum seekers who fall within the category subject to expedited removal do not receive expedited removal and are instead afforded the same procedural rights as other aliens [in INA § 240 removal proceedings in immigration court].”
What are the consequences? DOJ and DHS (during the Trump administration) explained that:
Once aliens are referred for section 240 proceedings, their cases may take months or years to adjudicate due to backlogs in the system.
In a significant proportion of these cases, the aliens did not appear for section 240 proceedings or did not file an application for asylum in connection with those proceedings. In FY 2018, of the 34,158 completions that originated with a credible-fear referral ... 10,534 involved in absentia removal orders, meaning that in approximately 31% ... the alien failed to appear at a hearing.
And Mayorkas and Garland concluded just this February 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.
Mayorkas and Garland also now realize that this state of affairs creates an incentive for aliens to come illegally to the U.S.:
[T]he 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.
This framework, pursuant to which migrants know that they will likely be in the United States for years before any order of removal, also risks providing an increased incentive for individuals to come to the United States ... .
[T]he vast majority of the migrants expected to surge to the border and make a fear claim following the lifting of the Title 42 public health Order would be screened in and permitted to wait in the United States for years before their asylum or other protection claim could be adjudicated. [T]his circumstance would ... likely be self-reinforcing: the expectation of a lengthy stay in the United States, regardless of the merit of an individual’s case, risks driving even more migration.
The Regulation and the Proclamation
Thus, a § 212(f) proclamation would be totally ineffectual in terms of addressing the crisis at our southern border unless aliens who ignore its terms and enter the U.S. anyway can actually be expeditiously removed.
This is exactly what the Trump administration attempted to do. Secretary of Homeland Security Kirstjen Nielsen approved an interim final regulation (IFR) on November 5, 2018 (as did Attorney General Jefferson Sessions the next day), that was published in the Federal Register on November 9. The IFR provided that:
[A]n alien shall be ineligible for asylum if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) ... and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order.
[T]he asylum officer shall enter a negative credible fear determination with respect to [such an] alien’s application for asylum. The Department shall nonetheless place the alien in [removal] proceedings [in immigration court] ... for full consideration of the alien’s claim for withholding of removal under section 241(b)(3) ... or for withholding or deferral of removal under the Convention Against Torture [and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)] if the alien establishes [the more stringent applicable test of] a reasonable fear of persecution or torture.
Also on November 9, President Trump issued a presidential proclamation titled “Addressing Mass Migration Through the Southern Border of the United States” providing that:
The entry of any alien into the United States across the international boundary between the United States and Mexico is hereby suspended and limited ... . That suspension and limitation shall expire 90 days after the date of this proclamation or the date on which an agreement permits the United States to remove aliens to Mexico [pursuant to a “safe third country agreement”], whichever is earlier.
Th[is] suspension and limitation on entry ... shall not apply to any alien who enters the United States at a port of entry and properly presents for inspection, or to any lawful permanent resident of the United States.
Nothing in this proclamation shall limit an alien entering the United States from being considered for withholding of removal ... or protection pursuant to the regulations promulgated under the authority of the implementing legislation regarding [CAT], or limit the statutory processes afforded to unaccompanied alien children upon entering the United States.
Obviously, these things were coordinated!
What statutory authority was the IFR based upon? Section 208 of the INA provides that DOJ and DHS “may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum”. As DOJ and DHS have explained, “By allowing the creation by regulation of ‘additional limitations and conditions,’ the statute gives ... broad authority in determining what the[y] ... should be”.
DOJ and DHS have also explained that “The courts have also viewed [this authority to establish additional limitations and conditions] as conferring broad discretion, including to render aliens ineligible for asylum based on fraud.” Well, they forgot about the 9th Circuit!
The IFR was challenged in federal court the day that it was issued, and the District Court for the Northern District of California in East Bay Sanctuary Covenant v. Trump promptly issued a temporary restraining order, and then a preliminary injunction against it. The 9th Circuit upheld the injunction in East Bay Sanctuary Covenant v. Trump (amending its decision and denying a petition for a rehearing en banc in East Bay Sanctuary Covenant v. Biden).
The 9th Circuit concluded, in a quite slipshod decision that played fast and loose with the law, that “together, the Rule and Proclamation make asylum entirely unavailable to migrants who enter the country between ports of entry. The magnitude of the Rule's effect is staggering.” You get the sense that you know where this is going ...
The 9th Circuit explained that:
We agree with the district court that the Rule is “not in accordance with law.” ... Section (a) provides that migrants arriving anywhere along the United States's borders may apply for asylum [“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”. The Rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum. It is effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress ... . [Emphasis added.]
The government argues that ... . [s]ection  splits asylum applications ... and eligibility ... into two different subsections; therefore ... Congress intended to allow DOJ to promulgate limitations on asylum eligibility without regard to the procedures and authorizations governing asylum applications ... . and the Rule does not prevent migrants from submitting futile asylum applications ... . [Emphasis in original.]
[But, w]e avoid absurd results when interpreting statutes ... . Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity. The consequences of denial at the application or eligibility stage are, to a refugee, the same.
But the government had argued that, in the words of the 9th Circuit, that:
[Section 208] contains various provisions making ineligible asylum applicants who committed a serious, nonpolitical crime outside the United States prior to arrival ... assisted or otherwise participated in the persecution of another person ... or were firmly resettled in another country prior to arriving in the United States ... among other things. The government suggests that the existence of these eligibility bars in the INA demonstrates that Congress intended certain categories of migrants to be permitted to apply for asylum even though they are categorically ineligible.
Makes sense to me. But the court’s response was that:
[U]nlike the eligibility bar effected by the Rule — the statutory asylum bars in the INA do not separately conflict with explicit text in section (a). There is no provision in section (a), for example, that affirmatively requires that migrants who were firmly resettled in another country be permitted to apply for asylum. The Rule creates the only bar to eligibility under ... that directly conflicts with language in section (a) ... (“‘[t]o say that one may apply for something that one has no right to receive is to render the right to apply a dead letter.’”) The district court correctly concluded that the Rule is substantively invalid because it conflicts with the plain congressional intent ... and is therefore “not in accordance with law[.]” [Emphasis in original.]
The court went on to argue that:
Especially where a migrant may be eligible only for asylum and cannot establish the more stringent criteria for withholding-of-removal, the discretionary factors — including method of entry — should be “carefully evaluated in light of the unusually harsh consequences which may befall an alien[.]”
We have supported the BIA's understanding of section (a). The most vulnerable refugees are perhaps those fleeing across the border through the point physically closest to them. That a refugee crosses a land border instead of a port-of-entry says little about the ultimate merits of her asylum application; “if illegal manner of flight and entry were enough independently to support a denial of asylum ... virtually no persecuted refugee would obtain asylum.” ... Given the Rule's effect of conditioning asylum eligibility on a factor that has long been understood as "worth little if any weight” ... in adjudicating whether a migrant should be granted asylum, it is an arbitrary and capricious interpretation of section (a).
Wait one New York minute! The 9th Circuit found the IFR to be arbitrary and capricious (under the Administrative Procedure Act) because it had a policy disagreement with the Trump administration over its “harshness”?!
The court contended that:
As the United Nations High Commissioner of Refugees ... explains, the Rule runs afoul of three ... rules [of the 1967 Protocol Relating to the Status of Refugees (“Refugee Protocol”), which incorporates Articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”)]: the right to seek asylum, the prohibition against penalties for irregular entry, and the principle of non-refoulement embodied in Article 31(1) of the 1951 Convention.
The Rule ... risks the removal of individuals with meritorious asylum claims who cannot petition for withholding of removal or CAT relief. By doing so, it is inconsistent with our treaty commitment to non-refoulement.
Wait another New York minute! As the 9th Circuit should well know, and as DHS and DOJ have explained:
Neither the Refugee Protocol nor the CAT is self-executing in the United States. See [the 9th Circuit’s 2009 decision in] Khan v. Holder ... (“[T]he [Refugee] Protocol is not self-executing.”); [the 3rd Circuit’s 2005 decision in Auguste v. Ridge] ... (the CAT “was not self-executing”). These treaties are not directly enforceable in U.S. law, but some of the obligations they contain have been implemented through domestic ... legislation.
What does domestic legislation provide? First, the INA already bars aliens who cannot establish a credible fear of persecution from applying for asylum, as it does for aliens who miss the one-year time limit for filing for asylum, who can be removed pursuant to a safe third country agreement, and in other instances. Second, as to the prohibition against penalties for irregular entry, the INA already makes unlawful entry a federal criminal offense (with no exception for aliens claiming asylum). Third, as DOJ and DHS have explained:
[T]he United States has implemented the non-refoulement provisions of these treaties — i.e., provisions prohibiting the return of an individual to a country where he or she would face persecution or torture — through the withholding of removal provisions ... and the CAT regulations (here and here), rather than through the asylum provisions ... . Limitations on the availability of asylum that do not affect the statutory withholding of removal or protection under the CAT regulations are consistent with these provisions.
Section 208 ... reflects that Article 34 is precatory and not mandatory, and accordingly does not provide that all refugees shall receive asylum…. Congress has also recognized th[is] ... by imposing various statutory exceptions and by authorizing the creation of new bars to asylum eligibility through regulation.
Courts have likewise rejected arguments that other provisions of the Refugee Convention require every refugee to receive asylum.
This was made clear in the Supreme Court’s 1987 decision in INS v. Cardoza-Fonseca:
[W]ithholding of deportation, or nonrefoulement ... . corresponds to Article 33.1 of the Convention. Significantly though, Article 33.1 does not extend this right to everyone who meets the definition of “refugee.” Rather, it provides that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion.” ... Thus, Article 33.1 requires that an applicant satisfy two burdens: first, that he or she be a “refugee,” i.e., prove at least a “well-founded fear of persecution” [the standard needed to establish asylum eligibility]; second, that the “refugee” show that his or her life or freedom “would be threatened” if deported. Section 243(h)'s imposition of a “would be threatened” requirement is entirely consistent with the United States' obligations under the Protocol. [Emphasis added by Cardoza-Fonseca.]
Section 208(a), by contrast, is a discretionary mechanism which gives [DHS] the authority to grant the broader relief of asylum to refugees. As such, it does not correspond to Article 33 of the Convention, but instead corresponds to Article 34 ... . [which] provides that the contracting States “shall as far as possible facilitate the assimilation and naturalization of refugees ... .” Like § 208(a), the provision is precatory; it does not require the implementing authority actually to grant asylum to all those who are eligible ... .
Thus ... Article 34 provides for a precatory, or discretionary, benefit for the entire class of persons who qualify as “refugees,” whereas Article 33.1 provides an entitlement for the subcategory that “would be threatened” with persecution upon their return.
Disregarding all this, the 9th Circuit continued:
By categorically denying refugees an opportunity to seek asylum only because of their method of entry, the Rule is also in tension with the United States's commitment to avoid refouling individuals to countries where their lives are threatened ... . The INA's withholding-of-removal ... and [CAT] protections ... are not as great as those conferred by the INA's asylum provisions. The evidentiary standard that applicants must meet for either withholding-of-removal or CAT relief is higher than the evidentiary standard for asylum ... . Applicants for withholding-of-removal and CAT relief must establish a “clear probability” that they would be persecuted or tortured, respectively, if they were removed to their home countries.
Wait yet another New York minute! As DOJ and DHS have pointed out, these “severe” standards are the very ones that Congress explicitly chose — and are only subject to the U.S. Constitution, not the 9th Circuit’s delicate constitution:
It was Congress’s deliberate decision to establish a requirement that an alien show that it is more likely than not that his or her “life or freedom would be threatened” for statutory withholding of removal … which is a standard designed to meet U.S. obligations under the Refugee Protocol ... . Commenters should address Congress regarding a change to this statutory standard.
[T]he provision of Federal benefits to certain individuals is a policy determination within the purview of Congress, which made the deliberate decision to limit some of these benefits to asylees.
The 9th Circuit prevented the Trump administration from implementing a § 212(f) proclamation that could have actually been successful. The court’s decision was an utter travesty. But, unfortunately, while it stands, any § 212(f) proclamation seeking to remedy the current border crisis will sadly be ineffectual — except to the extent that it occasions a naval blockade or other means of preventing prospective illegal migrants from entering the United States in the first place.
1 For example, the 10th Circuit “has never required freedom from official restraint for an ‘entry’ under § [275(a)]”.