Panel Transcript: Asylum Fraud and National Security

Panelists include ex-immigration judges and terrorism expert

Panel Summary

Reports and Panel Media

Panel Press Release

Panel Video

Report: Fraud in the "Credible Fear" Process

Report: Courting Disaster - Absent attendance and absent enforcement in America’s immigration courts

Date: May 10, 20176, at 9:30pm

Location: National Press Club, 529 14th St, NW, 13th Floor, Washington, D.C.

The vetting of refugees, and the attendant national security risk, has been widely discussed. But the vetting – or lack thereof – of asylum applicants has received little attention. This is a serious oversight, because while refugees are vetted before ever being allowed to step foot in the U.S., most asylum applicants are already here.

The Center for Immigration Studies hosted a panel discussion on Wednesday, May 10, focusing on the security threat posed by the ineffective vetting of those applying for asylum after entering illegally, specifically addressing the weaknesses in the "credible fear" process.

Andrew Arthur,
Resident Fellow in Law and Policy, Center for Immigration Studies;
Author, “Fraud in the ‘Credible Fear’ Process: Threats to the Integrity of the Asylum System”
Mark H. Metcalf,
Kentucky Prosecutor and Former Miami Judge;
Author, “Built to Fail: Deception and Disorder in America’s Immigration Courts” and “Courting Disaster”
Todd Bensman,
Manager, Terrorism Intelligence Programs, Multiple Agencies, Texas;
Author, “The Ultra-Marathoners of Human Smuggling: How to Combat the Dark Networks that Can Move Terrorists over American Land Borders”
Mark Krikorian,
Executive Director, Center for Immigration Studies
Transcript By Superior Transcriptions LLC

MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies.

And the panel today is a timely topic. We’re going to be talking about not just generally the national security aspects of immigration, but specifically as they relate to the immigration courts and the asylum process.

Our first speaker is Andrew Arthur. He’s a resident fellow in law and policy at CIS. And he’s going to present some of the findings from his paper “Fraud in the ‘Credible Fear’ Process: Threats to the Integrity of the Asylum System.” Art – which is his nickname, so we call him Art instead of Andrew; I think his mother calls him Andrew, but – he was an immigration judge for a number of years, served on Capitol Hill both before and after that in senior positions, was in the INS as well. So he’s well-versed and thoroughly up on this issue.

Our second speaker is another former immigration judge, Mark Metcalf, now a prosecutor in Kentucky, has published a couple of papers with us on the dysfunction in the immigration court system. “Courting Disaster” was the most recent paper that we published, and “Built to Fail” was the earlier one. I think the most recent one is out there. They’re both on our website. Before he was an immigration judge, he had positions in the Justice and Defense Departments under George W. Bush.

And our final speaker is Todd Bensman. He works in counterterrorism in Texas, for a couple of decades was an investigative reporter on this issue and, in fact, won an award from the National Press Club a number of years back and was here to get that award. He specifically looks at issues related to migration from Islamic countries where there are terrorism issues. And some of the comments today are going to be based on a paper he wrote for the Naval Postgraduate School, which I love the title: “The Ultra-Marathoners of Human Smuggling: How to Combat the Dark Networks that Can Move Terrorists over American Land Borders.”

So we’re going to go in that order, and then we’ll have Q&A afterwards.

So, Art?


MR. KRIKORIAN: Oh. Well, we can go in any order you want.

MR. ARTHUR: If we could begin with Todd, we can lay it out in a linear fashion.

MR. KRIKORIAN: They have already commandeered this event. So, look, I’m just paying for the room. (Laughter.)

So, Todd, go ahead.

TODD BENSMAN: OK, yeah. Appreciate you guys having me. It’s a great honor to be here.

I think the title of the paper that he just talked about, the creativity of that came from maybe my journalism background: “Ultra-Marathoners of Human Smuggling.” But I came in from Texas yesterday wearing my boots, and my governor, as we well know – our esteemed governor in recent weeks and months has taken great issue with the question of refugees from Syria and whether or not we should accept them in Texas. And he’s not alone; I think probably 29 or 30 other U.S. state governors have also raised this issue. It was a big issue in the presidential campaign, the question of what do we do with refugees, whether we should bring them in or not. I would call it almost a political infatuation with that issue.

But from the standpoint of allowing refugees in the United Nations resettlement program in, I believe that that is probably a fair issue to question in terms of vetting, extreme vetting, whatever you want to call it. But an equal issue that maybe should be contemplated not just by my governor, but by pretty much other governors and the rest of the political establishment, is the question of folks who are arriving at the border uninvited, show up at Texas in my home state, California, Arizona, they hit the border. A lot of people don’t recognize that prior to this issue of the refugees coming up, Syrians were already hitting the U.S. border by the hundreds. They were coming to California, they were coming to Texas, and they weren’t getting there by invitation.

So the apples-to-apples comparison isn’t there. You have a United Nations Refugee Program in which individuals abroad are selected, vetted abroad, invited, approved, given public assistance, airfare, visas, all the rest, and then they are resettled. And there is a process there that is fair game for discussion in terms of how effective it is. But, by the same token, there are many folks from the same regions comings to the border who get no such – they’re coming uninvited. They get no such vetting. And when they show up, they’re essentially saying my name is X, believe me, we don’t have any documentation, and here is my story, and I declare asylum. And that thus begins a process – a legal process that is quite different from the process that everybody has been talking about. And in fact, I would argue it’s a process that has had virtually no attention, comparatively, with the other one.

And so when we talk about border security, national security and immigration, this is really where things meet. This is where the nexus is. We have in Europe over the past year and a half – and this is what’s so baffling to me, as well, is that in Europe we’ve had – when they had their refugee crisis, and then subsequently Paris, Brussels, and a long string of terrorist attacks by migrants, most if not all of those folks came in not as resettled U.N. refugees; they came in at the border. They came in after hiring human smugglers, traveling hundreds and hundreds of miles, thousands of miles in some cases, reaching that border, and declaring asylum and starting a similar process, but in the European venue.

I would assert that that is really the issue for us as well at the Mexican border, because there are smuggling organizations, networks. Those are the organizations that I have studied, I’ve reported on as a journalist, and then more recently as a student at the Naval Postgraduate School. These are smuggling organizations that are entrenched and established, complex, and they are able to move folks from Syria, Iraq, and from 35 or 40 other countries right up to the Texas border and then over. And in almost all cases, they declare asylum. They arrive often with no documentation. This begins a process that Art has written about. It begins with credible fear. And it’s a process that is severely broken. There is, I would argue, virtually no vetting whatsoever of asylum seekers who arrive at the borders.

When people talk about the threat of border crossing – you know, terrorists coming across – from the perspective of somebody who has studied this, I don’t see this as the likely scenario of one of these folks coming in and then just opening up with bombs and guns and wreaking mayhem like that. I see them as coming in, declaring asylum, getting paroled in very quickly with almost no vetting, and then settling in somewhere for a few months, and then we’ll hear about it – as they did in Europe, and as they continue to do.

Folks who have entered Europe has wreaked bloody mayhem across that continent. It’s going on to this day. Every time there’s an attack, almost every time, it turns out to be somebody who had come in through a broken asylum system, vetting system in Europe. And so I would argue that maybe the threat is a little bit higher here for that.

I don’t know how my time is.

But regarding the smuggling, in my research I discovered that many of the smugglers, the professional smugglers who are bringing these folks in, have come to count on our inability to detect fraud – in fact, to such an extent that they have built it into their business model. They depend on it. They rely on it. Without our broken system, they would be out of business, maybe, because – and here’s why. A lot of these folks, migrants who make it to the Texas border or the California border, Syrians, may invest anywhere from $20,000 to $50,000 to pay their smuggler, to get the documents, to get the transportation. When they arrive at the border and they declare asylum, if they don’t get to stay, that’s a sunk cost and a lost cost. In many cases, this is a fortune. Now, maybe not for a terrorist organization, but nevertheless this funding sustains these smuggling organizations.

And so, for that reason, the professional smugglers have determined that they have to learn as much about our asylum system as anybody in the United States CIS – Citizens(hip) and Immigration Services. They are experts at our asylum system and how to game it. If they are not experts, then they’re going to lose business because if you get deported then, you know, the grapevine gets back, and pretty soon you’re not getting new clients fed into your pipeline, OK? So that’s issue one.

But the other thing is what they’ve been able to do is determine that all they really need to understand and have their clients understand is what story to tell to get them through the initial scheme of credible fear. Often –

MR. KRIKORIAN: You should explain what the credible fear –

MR. ARTHUR: I’ll take it.


MR. BENSMAN: OK, yeah. Initially when you come in – I’ll be very brief here, but initially when you come in and you’re apprehended, you say I declare asylum, and a USCIS officer will have to contact them and do an interview and ask them, if you go back, you know, what terrible things are going to happen to you. And if that officer checks box A, the asylum process begins. They can go to court, have a merit hearing, bond out, and all the rest of that. They’re here. If they check the other box, no, they’re deportable. They’re going home, OK? So it is absolutely crucial that they have the right story. And in many – I don’t want to say that everybody’s lying, but I just want to point out that we don’t really know whether the stories – they’re not so easy to verify. And at the credible fear level, at that point, that is the spot where it could be ascertained whether they’re going to be paroled into the country and that they’re going to stay here, like they did in Europe, OK?

There have been a number of cases in my studies where this has happened. These are professional smugglers who have been investigated and prosecuted in the United States. And I’ll just kind of go through a few of them to kind of give you a sense of what it looks like, what does this look like.

And I’ll start with Rakhi Gauchan. I’m not sure I’m pronouncing that right. She was a Nepalese smuggler of what we call special-interest aliens, or other-than-Mexicans; mostly Afghanistanis, Pakistanis. She moved – she was very prolific up until her 2013 arrest, and she was based mainly in Mexico and Guatemala. And she became such – she became a very, very recognized expert on our asylum system, particularly its vulnerabilities. And so she would – and the feds were able to get, you know, informants up close to her, so we know this – that she was able to tell them which persecuted parties to say that they were affiliated with, for example, in order to – where they knew that the credible fear interviewer or even the judge later would say, OK, that one – that fits our bill today. And these things change, and so Rakhi Gauchan had to maintain her expertise from day to day, month to month. She was such an expert that she understood that if one of her clients had actually come from Italy, as opposed to Somalia, that if they disclosed that fact, they would be deported. So there is as much omission as commission going on here.

And at one point, she helped what she – a man that she believed was a terrorist from Pakistan get into the country. That set off this nationwide manhunt looking for this guy. She thought he was. She didn’t care because it’s all about the money. Most of these folks are not ideologically motivated.

So another prolific SIA smuggler went by the name of Ahmad Muhammad Dhakane. Dhakane is written about in this paper. He was prosecuted a few years ago, apprehended in 2008. He was actually a smuggler based in Brazil. He specialized in moving fellow Somalis. Dhakane eventually decided to give up the business and come in himself. This guy understood the asylum system so well that he – because he dealt with Somalis who normally show up with no documentation whatsoever. In Somalia there was no government to give a driver’s license, to give a birth certificate. So my name is Muhammad and al-Shabaab was mean to me was pretty much all you had to say, and you’ve got credible fear and you’re in.

Except that Dhakane moved seven people into the country with those fraudulent stories that he believed – individuals that he believed were al-Shabaab extremists. And that set off another big manhunt all through the country, trying to find who these guys were, because by then they had already gone through asylum, they had received their asylum, and they were paroled in, OK?

But then Dhakane himself, when he decided to come in, interestingly about him, he almost – he got through all the first screenings and was into the country, was in a detention center, and serendipitously the FBI had an undercover in the Pearsall Detention Center in Texas, Somali, and they got in close together, and Dhakane started talking. And it turns out that he was a member of al-Shabaab, active as a guerilla fighter, arms purchaser, highly involved in his ideology, OK? Had it not been for that FBI undercover, he never would have been apprehended. And he was convicted of asylum fraud for omitting all of that information.

And then I’m going to finish up here, lastly, with an individual named Omar Fidse and Deka Sheikh. They came in together, two Somalis, in 2008. They were together. They were married. She was a – her credible fear story was that al-Shabaab killed family members. So was his. But they pretended not to know each other. She very quickly got asylum and moved to Wisconsin. He was well on the way to receiving his asylum. However, that undercover FBI guy was still in there, and again, serendipitously he acknowledged that he was al-Shabaab, he had been involved in plots to murder the U.S. ambassador in Kenya, well-versed in weaponry. He had come to the United States to commit an unspecified terrorist act. Had we not known this, her asylum claim would not have unraveled. It did. They brought her back, convicted her, convicted him of asylum fraud, and they got a terrorism enhancement, and both of them are still in prison now.

But with those examples, I’ll just kind of wrap up and turn the table over. I’ll just – one last reminder is that when they blow something up in Europe and then our politicians talk about the Refugee Resettlement Program, there’s this odd disconnect for those of us who are involved in these issues. And I would just say that the border asylum issue requires fixing as well.

Thank you.

MR. KRIKORIAN: Thank you, Todd.


MR. ARTHUR: Thank you, Mark.

I’d like to pick up from where Todd left off and the system that he alluded to very briefly, the system for processing aliens who have crossed the border illegally, and identify some vulnerabilities in that system.

The Border Patrol interviews all aliens who are caught entering the United States illegally. If an alien asserts a fear of persecution, the arresting officer, as Todd noted, will refer the alien to an asylum officer for what’s called a credible fear interview. The term “credible fear” means a significant possibility, taking into account the credibility of the statements made by the alien and other facts known to the officer, that the alien could establish eligibility for asylum.

Where an asylum officer finds that an alien has a credible fear, as Todd noted, the alien is placed in removal proceedings before an immigration judge and can file an application for asylum. As a judge, I heard hundreds of these claims.

Most credible fear claims are made by aliens from Central America. But, as noted, claims have been made from aliens – by aliens from such special-interest countries, or countries of concern, as Syria, Pakistan, and a large number of Somalis.

There are no hard numbers on the extent of fraud in the credible fear process. However, anecdotally, fraud is a significant issue in this process, as Todd alluded to, as aliens either exaggerate their claims or simply fabricate brand-new asylum claims.

As Todd alluded to, there have been identified instances in the past where smugglers themselves have either supplied the aliens that they were moving with fraudulent claims, or explained to the aliens how to bolster their claims to make it more likely that they will be found to have a credible fear and to have the opportunity to be released and apply for asylum. In other instances, aliens abroad have found out that friends or family members have successfully applied for asylum in the United States and copy those successful claims. Finally, there are situations where aliens simply tell asylum officers or immigration judges what those aliens think the judges and officers want to hear in order to get released from custody.

The credible fear process is vulnerable to such fraud for a number of reasons, and the biggest one is resources. There are only about 360 asylum officers who are stationed at eight asylum offices in the United States, and none of those asylum offices is at a land border. This relatively small number of asylum officers limits the time that any given asylum officer can spend on any given credible fear claim, a problem that has been exacerbated by a massive increase in the number of those claims.

In FY 2009, USCIS – U.S. Citizenship and Immigration Services – completed 5,233 credible fear cases. Eleven years – seven years later, USCIS received 94,048 credible fear cases and issued 92,990 credible fear decisions. Todd had mentioned before there’s a lot of focus on the asylum – or on the refugee program, which brings in about 70,000 people. In one year alone, in 2016, 94,048 people claimed credible fear at the border, most of whom we didn’t know and had no idea where they had come from. This is just too many cases for the asylum office to handle effectively.

As a judge I would often receive credible fear referrals from the asylum office, and some of those referrals were completed so cursorily that I really didn’t have any idea what the claim was. Aliens would come to my court and ask to be released. I’d say, I need you to file an asylum application because, quite frankly, based on what the asylum office has given me, I don’t really know why you’re here. That speaks more not to the quality of the asylum officers – because they’re all diligent people – but rather to the – but rather to the massive numbers of cases that any given asylum officer has to handle.

The burden on the asylum officers in the credible fear process is even more daunting when you consider the fact that those officers must also hear – there’s 360 – must also hear affirmative asylum claims, and those are claims that are filed by aliens already in the United States who claim a fear of persecution. In the fourth quarter of 2016, there were 194,986 asylum applications pending at USCIS, and that’s in addition to the almost 93,000 credible fear applications the asylum officers considered that year. Again, 360 people, 280-some thousand applications.

The asylum officers do have some help in identifying fraud in the credible fear process, however. USCIS’s Fraud Detection and National Security Directorate, also known as FDNS, was created in 2004 to help ensure immigration benefits are not granted to individuals who pose a threat to national security or public safety, or who seek to defraud the immigration system. It’s a great idea. What it comes to asylum and credible fear claims, however, FDNS is even more shorthanded than the asylum officers are. According to GAO, as of FY 2015 USCIS had deployed only 35 FDNS immigration officers and four supervisory immigration officers to work across all eight asylum offices. Again, 190,000 asylum applications, 93,000 credible fear claims, 35 people who are looking for fraud.

Another factor that renders the asylum and credible fear processes vulnerable to fraud is the capability of USCIS and immigration courts to identify fraud. In a December 2015 report, GAO found that three factors inhibit USCIS and the courts in identifying fraud.

The first is fairly basic: neither agency has ever assessed fraud risks across the asylum process. Because of that, they don’t really know what to do in order to respond to the fraud because they haven’t identified the scope of the fraud that they have. And consequently, they don’t have the controls in place to mitigate the fraud.

Second – and this is incredible in the 21st century – USCIS’s capability to identify patterns of fraud across asylum applications is hindered because USCIS relies on a paper-based system for asylum applications, and many of those are written out by hand by individuals for whom English is not a first or even a second language. For this reason, USCIS lacks the ability to compare any given asylum application with another. For example, or by contrast, you could type a phrase into Google and within less than a second you will find every document that is online that contains that phrase. USCIS doesn’t have the ability to do this with just one form of application, and many of these claims are repeated again and again. That capability would put them in a stronger position to identify fraud and to question further cases that include such repetition.

The third issue identified by GAO is that USCIS has given FDNS only limited guidance with respect to fraud, and actually applies the same fraud-detection procedures to all of the applications that the agency handles. Marriage fraud and asylum fraud are two very different things. Anybody who’s ever been involved in immigration for a long period of time is familiar with the idea of the bed check. Basically, at 5:00 in the morning, if you’ve applied for a marital visa for your wife, your husband, officers will show up at your house and just make sure that everybody’s there. You can’t really do that with asylum, unfortunately, but it is a one-size-fits-all process with USCIS. Because of this, FDNS officers have to work in an ad hoc manner when they are assessing asylum fraud. I read an application; oh, I remember that I saw the same claim in the application. I should compare those two applications. Not a very efficient way for 35 people to work.

In addition to agency constraints and limited fraud-detection capabilities, there are other factors that render the credible fear process uniquely susceptible to fraud. A big one is evidentiary limitations. There’s a saying in immigration law that persecutors don’t give affidavits. For that reason, the evidentiary standard for asylum is necessarily lower than for other immigration applications. I have a marriage license: I can prove that I was married. This is the title to our car; both of our names are on it. That doesn’t exist in the world of immigration. By law, an asylum applicant’s testimony may be sufficient to prove his or her asylum claim, even without corroboration. As Todd mentioned, sometimes you just have to go on the word of the individual. While this is important to protect legitimate asylum seekers, asylum officers and judges are often left with nothing but the alien’s own testimony in making a credible fear or asylum decision.

Many aliens admit, however, that they have spent months or even years making their way to the United States, including spending weeks at a time in safehouses abroad. This is time that an individual could putatively spend memorizing an asylum claim, such that when arrested by immigration they can regurgitate the claim that they have been given.

Similarly, fraud in a simple claim that depends on facts, some of which are true and some of which are fabricated, can be difficult to detect and even harder to prove. On May the 29th, there was a riot in my hometown. There are newspaper articles that talk about that. It’s easy to say I was involved in a political protest, and the police caused the riot by coming in and beating people. We know that the event happened. We don’t know that the person was there.

Finally, a regulation that bars U.S. government disclosure of information provided in credible fear and asylum proceedings can make it impossible to verify or contradict an asylum’s claim – an asylum applicant’s claims. And an effort to fix this vulnerability in the USA PATRIOT Act failed in committee, and that regulation has existed ever since.

Fraud in the credible fear and asylum process is not a victimless crime. As GAO has found, quote, “Granting asylum to an individual with a fraudulent claim jeopardizes the integrity of the asylum system,” close quote.

In addition, as Todd had mentioned, aliens who posed a national security risk have abused the asylum system. The most famous one is Ramzi Yousef. He showed up at JFK, he had an Iraqi passport, he said that he had been abused, and he was released that evening. Ramzi Yousef and his traveling companion, Ahmed Ajaj, were the masterminds of the first World Trade Center bombing. Ajaj actually carried with him certain documents that explained how to make a bomb, and so Ajaj got detained. Yousef got released, and Yousef had to go to prison and visit Ajaj so that he could figure out how to make the bomb that they put in the van that they blew up.

More recently, as Todd Bensman has detailed in his writing and quite eloquently described, aliens with ties to terrorist organizations have been prosecuted for fraud when applying for credible fear. The most heinous of these cases is an individual who repeatedly raped and eventually impregnated a traveling companion prior to coming to the United States because he believed that it was more likely that he would receive asylum and get released if he had a pregnant wife. Fortunately, the authorities found this out.

The Trump administration has taken some steps to address these issues. About a month and a half ago, it made changes – actually, a little bit longer than that – it made changes to the training materials for asylum officers to tighten the evidentiary standards for finding credible fear. Under the Obama administration, there was a tendency to want to trust individuals who made claims, hoping that they would get sorted out later in the system. That’s been reversed by the Trump administration. The implication – or the implementation of that is really the issue.

By executive order, the president has directed the detention of aliens pending the completion of the removal proceedings. This is critical because the fact is a lot of people were hoping that they could get just past that first step, get in front of an immigration judge, and then be released. Happens in a couple ways.

One, you can apply with the judge for a bond to be released. You have to show you’re not a flight risk or a threat to national security. But, as I mentioned, you don’t really have a lot of information to go on when dealing with those people.

The second is resource constraints. People in my court, in my experience, generally appeared before me, and six weeks later they were gone because ICE ran out of detention space and they prioritized the people that they released. So the Trump administration has taken the steps in order to mitigate that.

Also, importantly, because of the statements that the administration has made, and as detailed on the front pages of most newspapers today, the number of individuals who have attempted to enter the United States and go through the credible fear process has dropped precipitously, in the 70 percents. Because of this, there is now more detention space. More detention space means the longer that you can detain somebody means the less likely it is that somebody is going to fraudulently obtain asylum means the less likely that it is that somebody is going to attempt – that somebody else is going to attempt to enter the United States. It becomes a virtuous circle of enforcement that has shown itself based strictly, more or less, on the president’s own statements.

These are important first steps, but there’s a lot more that has to be done. And I could go on all day, but Mark won’t let me. So right now I’d like to hand it over to Mark Metcalf, who will address issues with non-detained aliens in court proceedings.

MARK H. METCALF: Thank you, Art, Mr. Krikorian and Todd. It’s an honor to be here. Thank CIS for sponsoring this event.

Just wanted to talk about a few of these dynamics and place them in the context of a non-detained court setting for you. I’m going to get into some numbers for you. All of these are available either in “Built to Fail” or in “Courting Disaster,” complete with graphs, so you can actually see the numbers and know the sources for those numbers. But all of these numbers have been provided through government reports. What we’ve done is merged them, crunched them so that you can actually see the dynamics taking place here.

You know, immigration is a uniquely American enterprise, as well as a tradition. It’s one of the most powerful dynamics in our nation. And often our immigration mechanisms are overmatched by people wanting to take advantage and willing to game our laws to enter the United States, sometimes just to find a job and other times to do bad things when they get here. You can arguably consider that the Immigration and Nationality Act is a cornerstone of federal law.

Let me give you some of the dynamics overall of this. The U.S. has 5 percent of the world’s population and attracts 20 percent of its legal immigrants. The fact that we are often overmatched in a non-detained setting has to do with good stories being provided by smugglers. I was on the court in Miami, and what we would see in Miami would be stories concocted by a smuggler complete with funeral pictures of a family member who had allegedly been murdered, or even worse a family member lying in what we would call a recovery basket with a body visible in the basket, with a story to explain how that person got there and why the person seeking asylum was in the United States. Very well-orchestrated, and only very good cross-examination from a DHS prosecutor could reveal the open seams in those stories and enable a judge to make a decision.

And the old saying is in the law that a judge cannot adequately decide a case if it has not been adequately tried. And in the context of terrorism or drug cartels or crime syndicates, when you have money backing up those initiatives, you’re going to have very complex, well-researched stories. We had stories coming out of Colombia complete with death notices and obituaries, and people claiming that they had been fleeing the FARC. And this is on the downside of the FARC’s influence. So some people who wanted to make it to the U.S. would tack onto their stories a narrative of fleeing the FARC. The FARC was famous for sending consolation cards and messages to people they intended to target for their – for death or for murder or assassination, in exchange for which, if you sent them to a drop box or to an anonymous site a payment, a ransom in other words, they would leave you alone. So we would see cards, letters concocted, sometimes legitimately, sometimes not so legitimately in order to justify a claim for asylum in the U.S.

I want to give you the dynamics of the court system so you understand our immigration courts are not able to do the job they’re supposed to do for a lot of reasons, one of which is they’re overmatched by the people applying for asylum, ofttimes. These are some of the ugly numbers, and these are the numbers that the Justice Department won’t tell you because they don’t crunch the numbers so you can actually see the trends that establish dynamics that you can actually follow in a linear manner.

“Built to Fail” summarized courts’ activities for about 14 years. That was from 1996 through 2010. Most of those dynamics were distilled to a 14-year period. At that time, 40 percent of all aliens free pending trial failed to come to court. They just disappeared. The numbers now for the last 21 years – “Built to Fail” is 14 (years), “Courting Disaster” 20 (years), and I updated those numbers with the last court report – so the last court report reveals that that number has held. Thirty-seven percent of all aliens free pending trial never come to court. Or, if they do, they vanish sometime before a decision.

The Justice Department has never admitted that. Specifically, EOIR, when this story first broke in Miami, with an op-ed piece that they published under my name, Mr. Osuna, who was the – at that time the director of the courts, wrote that those numbers were wrong – wrote a letter to the editor and said those numbers are wrong, those numbers are wrong. In the latest report, they’ve added a fourth box comparing aliens who were free pending trial – all aliens free pending trial – and compared it to all aliens who failed to appear in court. The numbers were exactly the ones we have – we have offered for the last year: 2015, 43 percent of aliens free pending court failed to come – failed to come to court. In 2016, 39 percent failed to come to court. Our numbers match up with EOIR’s. And they’ve added this new box or this new line to their reports. Prior, they called this the failure to appear rate or the overall failure to appear rate. Now they call it the in absentia rate, but it’s still the same thing.

And what they were doing – and just follow the math here; I think it’s fairly easy – if I put one over 10, that’s 10 percent. If I put one over 100, that’s 1 percent. And that’s what they were doing. They were adding aliens in detention pending trial to all aliens free pending trial and drove down the failure to appear rate, misleading Congress, the Justice Department, and the public for what the real dynamics of failure to appear was, and is.

So, let’s see, in 2009/2010/2011, in that time frame, they said that the failure to appear rate was only 11 percent. You get that number by adding the aliens in detention. It was really 32 (percent). It was 200 percent more than they told Congress. This is a travesty. It just defeats the high calling of federal service, and it’s unworthy of us.

I’m just going to give you the dynamics for the last 21 years. And you can see that if somebody wants to game our immigration system, the thing to do is to come in, give a good story, get released, and then never come to court. And has – have terrorists been involved in that dynamic? They have.

I’m going to give you the example of Ahmed Ferhani. He posed a threat well after his entry, and he was a lawful permanent resident. He got caught up in some criminal schemes, drug trafficking among others. He was placed into deportation proceedings in early 2011. He remained free pending trial. He failed to appear in immigration court and was later arrested, but only after discovery of his plan to attack the Manhattan synagogues and the Empire State Building.

Moroccan-born El Mehdi Fathi or Faithi (sp) is a variation on that theme. He overstayed his student visa after flunking college in 2009. He disappeared. He was eventually located in Virginia on criminal charges, being held there. And despite immigration violations – you know, leaving when his visa has expired – he was eventually arrested, eventually turned up in California on felony theft charges, and by this time he shams an asylum claim, saying that if he is returned to his country he will be persecuted. That is granted, and what does he do? He promptly leaves jail or promptly leaves immigration court proceedings, goes east, and plots to attack a Connecticut federal building in April of 2014. This kind of stuff is right at our doorstep.

Over the last 21 years, 49 percent of all litigants who are free pending trial – and that is 1.25 million out of 2.6 million – were ordered removed. So half the people that we turn loose are ordered removed eventually. Out of this group, 76 percent were ordered removed for failing to appear, and that number is 952,291 people ordered removed for failing to appear. And those who did appear, only 24 percent. In other words, the ratio is this: the ratio is that of those orders of removal issued in a non-detained setting, three out of every four decisions – removal decisions are for failing to appear in court. Twenty-four percent, or 25 percent if you do it by quarters, are people who actually showed for their trials and were ordered removed, and that’s 302,000 people. In other words, the vast number of orders of removals in non-detained settings are for people who never show for court. Courts are only deciding on the merits 302,000 cases over the last 21 years.

So, in 2016, 39 percent failed to appear. How did that work? Well, we had 34,268 people fail to appear out of 86,881, 39.3 percent. What did the Justice Department, or actually EOIR, do? They added the aliens in detention. That’s what they did, and that turned out to be a shrunk number down to – in the 20s.

This is the worst example, and this is where we can really be gamed, right after 9/11. In 2005 and 2006, 60 percent – the precise statistic is 59 percent of all aliens free pending trial never came to court. And this is within – this is in 2005 and 2006. And the numbers are the same: 216,000 people failed to appear.

How am I doing, Marguerite? How many minutes I got left? One minute? Thank you.

I’m going to stop right there. I really appreciate the National Press Club hosting us today and Mr. Krikorian’s through CIS sponsoring this event.

The numbers just don’t add up, and I think we’re seeing in EOIR some willingness to be candid about these numbers. I have never mentioned names. This is the first time I’ve ever mentioned a name, but that was in direct response to a denial that those numbers were correct. I’ve got a copy of that letter, sent from the director of the courts to The Miami Herald, which I’m happy to give any of you who want to see it.

So thank you for being here to listen today.

MR. KRIKORIAN: Thank you, Mark and Todd and Art. And since I am paying for the microphone, I’m going to ask the first question.

And this, I guess, maybe is more for Todd than for anybody else. There’s always been this sense or a – you know, a response a lot of people have made to this issue of smuggling organizations bringing terrorists, potential terrorists, is that, you know, they’re in it for the money, and if they actually do bring a terrorist across the border, that potentially is bad for business because then we crack down. You know, I mean, it makes superficial sense, but what’s – I mean, have you considered that? What’s sort of your take on that? Yeah, Todd.

MR. BENSMAN: So I can take that.

MR. KRIKORIAN: Yeah, please.

MR. BENSMAN: I guess a quick answer to that would be that if the U.S. government is not yet doing extreme vetting, neither are the smugglers. Oftentimes I would say that they don’t know who they’re bringing in. However, as in the case of Dhakane, Muhammad Dhakane, sometimes they do know.

There was a smuggling prosecution here in the District of Columbia I want to say three years ago of a special-interest alien smuggler by the name of Irfan Ul-Haq. He was prolific in bringing Pakistanis over the Mexico-Texas border till they finally got – they finally got him and picked him up at the Miami airport a few years ago. What was interesting about that case is that ICE HSI got an informant into and close to that particular smuggler while he was overseas and planted a story: we would like you to move some Pakistani Taliban terrorists who are blacklisted into the United States for us. And Ul-Haq’s response was, sure, I have no problem with that, I don’t care if they come in, mop floors, or blow something up.

So, in some cases, you know, they’re about the money. In other cases, they just don’t care. There have been a number of SIA smugglers who after 9/11 got out of the business because they felt the heat would come on. So –

MR. KRIKORIAN: But there’s plenty that are willing to do that as well, yeah.

MR. ARTHUR: Absolutely. I mean, you would build it into the – you would build it into your business model to the degree that there was any specific danger, one. And, two, the same response could be given for, you know, drug traffickers. Smugglers don’t care what they run. They don’t care if it’s people. They don’t care if it’s drugs. They don’t care if it’s, you know, some sort of weapon of mass destruction. I don’t want to be dramatic about it, but you know – no one really has an ideal picture of a smuggler, but in reality they’re worse than you can possibly imagine. You know, they live on the edges of the law. They really don’t care. And the fact is, you know, if the heat comes on them, well, they’re good at moving people, they can change venue themselves and go someplace else with the money that they’ve made, so.

MR. KRIKORIAN: Interesting.

Anyone? Yeah, wait for the mic.

Q: Thanks. Peggy Orchowski. I’m congressional correspondent with The Hispanic Outlook.

I’m wondering, this gets wonky, but I know there’s a difference between applying for refugee status, applying for asylees. And as I understand it, the basic difference is refugees supposedly are supposed to seek refuge in the first safe country they come to, so therefore if they’re coming through Mexico, why would we accept a refugee in the United States? But I guess asylees on this don’t have that restriction. They can cross through dozens of countries, and then come to the United States and accept asylum. Is that true? Or is there – is there any distinctions made? And the same with the protective – temporary protective status. Do asylees get temporary protective status? And then – ha, ha, ha – is there any enforcement to the “temporary” part?

MR. ARTHUR: It’s actually a very good question. And part of the reason why – if you read a press report – in fact, former Director James Comey of the FBI in testimony last week noted that 300 refugees were being tracked in connection with terrorist ties. You’ll often see the words “refugee” and “asylee” used interchangeably, and part of that arises from the Immigration and Nationality Act itself. The definition of “asylee” is a person who satisfies the “refugee” definition. But an easy way to separate the two is to apply for asylum, you have to be in the United States. You can enter legally. You can enter illegally. You can, you know, pass credible fear and be placed into asylum – or given the opportunity to apply for asylum. Refugees, by definition, are all abroad. They’re all – you know, they go through a screening by the U.N., and then they get interviewed by USCIS officers over there before they come.

And unfortunately, because of the blurring in the Immigration and Nationality Act between the two phrases and in the popular imagination, I think that when we had a big discussion – I was on House Oversight last year when we were having the discussion following the Bataclan massacre about refugees coming from, you know, certain countries – that people blur the two things in their minds. A crucial takeaway that I hope that you – that you get from this presentation is, as Todd said, there’s a vetting process for refugees, and we can always say no. We don’t really know about you; you’re going to have to stay in a camp in Jordan. Asylees self-select to come to the United States. By the time that the decision – by the time that they apply for asylum, they’re already here, and we have to actively move them out of the United States. For that reason, this presents a much larger vulnerability.


MR. BENSMAN: Yeah, I would also just add that to – a quick point about the posture that countries that are transit countries like Mexico or Panama take toward SIA – special-interest alien – migrants that are moving through their territory. Special-interest aliens is the government vernacular for that, not mine. It’s a sub-category of other-than-Mexican – OTMs, that’s another one. But it’s all post-9/11 vernacular.

But in any case, there are two things going on there: that the transit countries through which they’re moving are not interested in keeping them, typically; and those who are moving through those countries, although they’re perfectly safe, are not interested in staying, they just want to move through. And so typically what’ll happen is when these migrants are apprehended in Mexico, they’ll be given food, water, medical attention, taken pretty good care of, and then they’ll be provided after two or three weeks with a legal document that allows them to be in the country for two or three weeks with status. That gives them just enough time to make their way to an exit, which is almost invariably a northern exit. And so that’s the case in Panama, Costa Rica, and most particularly Mexico. And often they’ll, you know, find the Mexican immigration folks will take them straight to the border in a taxi.

MR. ARTHUR: You know, this is commonly called catch, rest and release, and it happens throughout the smuggling routes – catch, rest and release. You’ll get detained. You’ll get placed in detention in, say, Panama for 10 days. You know, you get a place to stay. You get fed. You get a(n) exit visa. And you’re allowed to leave the country, go wherever you want, and it’s not a big surprise of where they’re going.

The best example of this is found in the United States Department of State Country Report on Human Rights Practices for Colombia. And it contains an amazing statement. It’s a little long, so please bear with me. Not too long.

Quote, “The government” – of Colombia – “reported a continuing rise in the smuggling of migrants from outside the region through Colombia en route to the United States and Canada. According to UNHCR and Colombian migration officials, most of the undocumented migrants were Cubans and Haitians, followed by Africans and Asians, and most entered through Ecuador, Venezuela and Brazil. While the government generally provided access to the asylum system for such persons who requested international protection, many abandoned their applications and continued on the migration route.”

To underscore Todd’s point, this sort of establishes the fact that safety isn’t the primary driving goal for these individuals. There’s a saying that a drowning man will reach for the point of a sword. These individuals in Colombia that were making their applications had the opportunity to resettle in Colombia and be perfectly safe from whatever the fear that they have, but they’re not taking the opportunity because the goal is coming to the United States itself.

MR. BENSMAN: And in some cases that’s – family reunification has to do with that, economic opportunity. It’s perceived that this is a better destination, so.

And one other last point on that, if I –


MR. BENSMAN: That the – in some cases the SIA smugglers, the kingpin/ringleaders, have built into their – embroidered into their operation, into their business model, Mexico’s accommodation. So it’s required in some – and in some cases it’s been – they require their clients to stay there, partly – to go through that, partly because, you know, they’re going to get a legal document in the south, and they can kind of take their time. They don’t have to – their risk is lowered. Their trouble is lowered. They’re not having to pay as much bribe money, et cetera. So they want their clients to stay in these places for a while and get that legal doc.

MR. KRIKORIAN: This does suggest something that’s been a, you know, bugaboo of mine for years, which is that most of this problem is because we are allowing people who aren’t coming immediately from the country they’re being persecuted in to claim asylum in the United States. And the Refugee Convention – Article 31 of the Refugee Convention specifically says that an illegal immigrant must be considered for asylum, can’t just be turned down because he’s illegal, only so long as he comes directly from the county where he’s being persecuted. And so it seems to me that part of the policy issue to deal with, whether it’s people not showing up for court or whether it’s, you know, terrorists trying to sneak in, is to basically try to get Mexico, and all the airports from Europe where people also fly in from, agreements with them so that if somebody comes through those routes, we don’t even consider their asylum claims. In other words, it’s like you may be the most persecuted person on the planet, but you have no right to apply for that here because you should have done it before.

And my question is, are there – what can we do to move in that direction? Because obviously we’d have to get Mexico to agree to take those people back, because they’re only going to take their own citizens back otherwise.

MR. ARTHUR: It’s an interesting question for a couple of reasons.

One, under current law, asylum is actually a discretionary form of relief, which is a little odd. If you have a well-founded fear of persecution on account of your race, religion, nationality, membership in a particular social group, or political opinion, you could be granted asylum. However, the judge or the asylum officer has to grant that in the exercise of discretion, and generally the persecution itself is enough to overcome that bar.

There are rare instances, however, where an individual will pass through a number of countries that grant asylum and the judge will say or the asylum officer will say: I’m going to deny this claim in the exercise of discretion, notwithstanding the fact that you have a well-founded fear, because you could have applied in one of those other countries. This is a very tricky determination to make because, one, you open yourself up to – you open yourself up to review by the Board of Immigration Appeals or a circuit court who says you found that this person was being persecuted, and yet you’re denying their application; how heartless can you be?

Or, in a funny example, a number of years ago, when Todd was a reporter, he actually wrote about a case that I handled. And he didn’t say – he didn’t put it in quite those terms, but – (laughter) –

MR. BENSMAN: Sorry. (Laughter.)

MR. ARTHUR: It’s quite all right. By the way, we only found that out incidentally after we met.

But you always run the risk that you’re going to be the person – you’re going to be the poor government employee who makes a decision that gets thrust out there on the front page and people are going – and you don’t have the ability to defend yourself. As an employee of the Department of Justice, which immigration judges are, you can’t say, but wait, I’ve got a statement to make because EOIR – the Executive Office for Immigration Review, which includes the immigration courts – will say we don’t comment publicly on cases. Well, you can imagine what the story is that comes out of that.

But the point that Mark makes is an important one. Once people are in the United States, if they’re third-country nationals, if they’re other than – if they’re from other than Mexico, we’re sort of dependent upon either the Mexican government or whatever other country – Colombia, in the case of the country report – to take those people back so that they could return to or make an asylum claim in that country.

So one way that we could address this issue is through legislation and make it clear that any individual who passes through our country, that grants asylum or refugee status – and they’re all – these are all nationally known country – you know, internationally known because you have to be subject to an agreement – is not eligible to apply for asylum in the United States.

We have a Safe Third Country Agreement with Canada. Canada actually does a very good job of keeping people that they don’t want in Canada out of Canada. Air Canada is a national flag carrier. It’s part of – has a relationship with the Canadian government. There are not many boats that people get on that take them to Vancouver or that will take them to Prince Edward Island or New Brunswick. So most of the people that go to Canada come from the United States. We entered into an agreement with the Canadians to say, hey, anybody from – who, you know, ends up in Canada, if they come to the United States, we’re going to send them back to apply; anybody that ends up in the United States, we’re going to – you know, that goes to Canada, you can send them back. At the end of the day it really only benefits Canada because the United States has open land borders.

So we can enter into agreements with countries like that. The problem is most countries aren’t going to enter into an agreement to take people that they already allowed to pass through their territory, right?


The guy behind you, first up.

Q: Yeah. I’m Bill Bush (sp), an independent blogger, and I have ties to the gay community and also to some conservative news – a lot of different contacts.

I hear a lot about the moral obligation of people to help asylum seekers and refugees. They’re often lumped together. As you know, in California and Texas there are a lot of religious groups, evangelical groups and Catholic groups, sheltering undocumented people, and they think it’s a moral obligation of people to help do that, to share their wealth. There is also groups that want to parole people out of detention and find sponsors to do that. And there is a whole issue that the United States does not have a private sponsorship program for refugees the way Canada does, which would not – which indirectly could be applied to asylum seekers.

How do you feel about, you know, some of these things – groups, especially religious groups are saying, people have to do everything they can to help refugees and asylum seekers? Remember in 1980 the Mariel boatlift, when there was a lot of pressure for people to house Cuban refugees – and that was widely done back then; it didn’t work out particularly well. How do you feel about that? What would you say to people about the morality of all of this? I’m trying to be as objective as I can.

MR. KRIKORIAN: Anybody want to take that?

MR. BENSMAN: I can take it.

So it’s inherent in our – all of our – I guess our history and our national legislation regarding refugees and the asylum – it’s the national – nationality immigration –

MR. KRIKORIAN: Immigration and Nationality Act.

MR. BENSMAN: Immigration and Nationality Act that – an American value is to provide sanctuary for those who need it. And I would argue that there is a balancing act that has to be made there where we are able to uphold those values to provide sanctuary to those who need it when we can – when we can determine who they are. And I think that’s kind of the key, in the post-911 period, that if we can improve vetting, if we can improve those processes, then that better enables us to provide sanctuary and to meet those values.

MR. ARTHUR: Yeah, and just to follow up on that: We’re a secular country. But the granting of asylum is – takes on almost a religious tone in this country. You know, many of us came here, you know, many of us are the children, the grandchildren, the descendants of individuals who fled to this country seeking asylum in the forms that had existed in the past.

And as a judge – and I don’t want to speak for Mark, but, you know, the greatest thing that – you know, other than swearing in citizens, which is a power that immigration judges have and which is really cool because everybody wants to get their picture taken with you – granting asylum is the greatest power that you have because you truly put the cloak of the United States around this person and say, you’re not going to be harmed anymore.

With respect to the moral issue of this, as Todd mentioned, if there is better vetting, we can separate the good cases from the bad. And let me explain to you why that’s important.

Bad cases in immigration law – bad asylum cases, fraudulent cases or, you know, cases that just don’t have a basis – slow up the process for people who are in the United States and applying for asylum themselves. Once you get asylum, you can actually bring in people who are in your family, who are, you know, probably in trouble too, because they’re associated with you, into the United States. But the backlogs run on for years because so many bad cases are in the system. That’s a moral issue.

The other issue is that in many instances, bad cases seem to drive out good cases. There are people who will have facially valid claims of harm because there is a threat. And the threshold’s pretty low. But so many people come into court thinking that they have to bolster their claims. I was beaten, I was – you know, they broke my bones, they hung me by my thumbs. And these aren’t real examples, but I’m just giving you an idea – that, you know, it’s difficult as a judge – it’s possible, and most do – but to hear these horrible cases full of puffery and then hear this other case of, people came by, the government came by my house, they park out front, I’m a political opponent, well-known, and the fact is that they’re made threats to me that I think they’re going to act on. We don’t have any of that – any of the puffery that exists in those other cases. And it’s very difficult to say, this case, it passes the threshold, it’s not high.

You talked about the moral issue of –

MR. METCALF: Go ahead.

MR. ARTHUR: You talked about the moral issue of parole. And that’s an important point, and I’d like to just give a different perspective on that.

If individuals know that when they come to the United States, that they’re going to get released, more people are going to attempt to enter the United States illegally and go around the extremely generous system. You know, 20 percent of all the world’s legal immigrants come to the United States. We accept more refugees than the rest of the world combined or – don’t quote me on that. But when you encourage people to come to the United States illegally, those individuals subject themselves to the smugglers.

Smugglers are God-awful people. I mean, it’s difficult to think of a worse group of individuals than any individual that engages in smuggling. If you put yourself into the hands of an individual to bring you to the United States, if you’re a woman, you’re probably – there is a high – not sure probably, but there is a distinct possibility you’re going to get raped. You’re almost definitely going to get robbed. The possibility of being murdered is extremely high.

And so when people – when we encourage things – when we release individuals from custody – and I understand the impulse, but when we release individuals from custody before we have a full opportunity to vet them, we just encourage more people to go through that system. We might as well be advertising for the smugglers ourselves.

So I understand the moral issue, and it’s a strong one. And when I was a judge, I was a judge in a detained facility. And I would walk through the facility daily. And the COs knew me, and I knew them, and by and large they were good people. But, you know, if there was ever a complaint, they could bring it to me, and I would bring it to the captain, and I would – and everybody in that system wanted to make sure that everybody was treated well because they had a government contract, for one, but because inherently, they were mostly – they were almost exclusively good people who didn’t want to have anything bad happen and understood the weighty responsibility that they bore.


MR. METCALF: No, no, it’s fine. Art has a unique perspective I think you need to hear perhaps more than my own.

In a non-detain setting – and Miami is – has both going on; we have a detention center at Krome and a detention center in Broward, so we have large calendars all over South Florida. And I don’t – I’m not a judge anymore. I was – and I was at the downtown Miami courthouse.

Just let me give you this: Judges are flesh and blood. And the old saying is that the heart bone is connected to the head bone. It’s very true in the immigration setting. And I heard cases – you mentioned the gay community – I heard cases out of what we call very macho countries, like Colombia, for instance, where there is a sort of tradition of what, or so I was told during my hearings, and that these individuals needed to flee because gay men in particular are subjected to abuse.

On its face it was – appeared to be a strong claim. And I heard the case over a period of three days – not three full days, but over a period of three days. And it later came out that a man who was 27 years old had never engaged in sex before and was offering up a case for membership in a particular social group, that of men. There wasn’t enough information for me to conclude that the asylum claim had merit, and I turned it down. But it took three days, three separate hearings, a total of I would say probably five to six hours, before I felt comfortable with making a decision, not necessarily in his favor, but in making a decision at all.

And that type of consideration is true across all cases. Anywhere from 40 to 50 percent of asylum petitions or claims are granted on average. So this is – and we don’t detain those people after they lose their cases, even though under the law we can. I don’t know what the Trump administration is going to do. And many of these people later disappear. So obviously, we have a great deal of confidence in the foreign-born, and it’s built into our statutes.

I want to give you something that Todd did, but I want to give you a particular example of it while I have a second here. This is not from a smuggler, but this is from a person who used a smuggler and then began to manufacture documents or obtain documents illegally once he arrived in Europe. And the follower is named Yahya. And it was Rabei Osman speaking to him. Spanish intelligence intercepted this on May 24, 2004.

And this is a direct quote the intercept: “Everything is permitted in the cause of jihad, including marrying with Christian women, because we need immigration papers. We have to be everywhere, in Germany, in Holland, in London. We are dominating Europe with our presence. The women serve to obtain documents because we are in favor of the cause of God.”

You have a grim determination to cause trouble once you get there matched up with a profit motive from the smuggler, and it is a toxic mix for the West and for our values because we don’t like turning down people. We like granting relief. At least when I was a judge I felt really comfortable about the cases I granted. But that’s what we’re dealing with. And it’s no small matter for the United States to be put into a position where it has the contrived claims of smugglers and terrorists matched up very well together and then entering the United States or Europe and then doing what Mr. Bensman referred to as – I think he said bloody mayhem. And it’s all true.

MR. KRIKORIAN: Thank you, Mark. Let’s take one last question so we can respect people’s time.

Q: Hi. Thank you.

I just – to your point on the need for a better vetting system and the capacity of asylum officers and judges, I just was curious about why aren’t more calls to increase judges and asylum officers in this capacity. It seems to me that the backlogs, if you could cut that to be instead of a matter of years, a matter of days or weeks, it would be less of an incentive for people to game the system, as you guys are saying.

MR. METCALF: Well, the game system is correct, but I’m going to argue to you right now that a lot of this is self-inflicted. In 2008 you only had – “only”; it was a large backlog – you only had 186,000 cases in backlog. Now you have 542,000 cases in backlog. And this is after eight years of the Obama administration. They weren’t trying cases. They were taking cases that they didn’t think they could grant relief to and put them over into what was called administrative closure hoping those cases might get stronger over time. Those cases still need to be brought back on an active calendar for the judges, both in – or all of them in non-detained settings, to start considering.

The other thing the Obama administration had done prior to an earlier directive from one of the former chief judges by the name of Mike Creppy or Michael Creppy was to allow people to change venues. And they were granting lots of venue changes to a city where the applicant wanted to be heard. Now, that slows down cases by a year. And you can believe that the smugglers also tell them, seek venue changes because that will slow down your case, and you can build equities while you’re here. “Building equities” is a term of art in the immigration court business because you look at what has the person done since they got here. Those are the equities. That’s one of the things they look at when granting lawful permanent residence or granting a cancellation application, and cancellation is for nonpermanent residents as well as lawful permanent residents.

And I see Art motioning at me, but we didn’t have backlogs like this in 2008. We have them today. We have to deal with them. And you have in the – in the pipeline more than just a little over 300 judges. By the time they’re all on board you should have somewhere in the neighborhood of about 350 judges, 330 judges that will be coming in to hear these cases.

MR. ARTHUR: Yeah, Attorney General Sessions has announced the hiring of 75 additional immigration judges. But again, 542,000 people, 75 additional judges. Some of those people will be in a supervisory capacity. Plainly, there is a need for more.

One thing I will mention, though, is that judges don’t come cheap. An immigration judge can get paid up to I believe it’s $171,000 a year, which is good if you’re a judge. And, you know, in addition to that, you also get health insurance, you have a thrift savings plan, which is like a 401(k); costs a lot of money.

With respect to asylum officers, USCIS is fee-based. Basically, it pays its own way based upon the money that it receives from the applications that are filed with it. However, there is no fee for a credible fear application, and there is no fee for an asylum application. So the fact is you could have one asylum application or 500,000; the amount of money that comes into the agency is exactly the same. And for that reason, it has to – the agency, you know, provides resources where people are paying. You have a naturalization claim? We’re going to, you know, move that out of the pipeline, especially since you – if you’re applying for naturalization, you already have a green card, you already have a congressman that you can go complain to about why you don’t have your citizenship yet. Same with marriage application. You’ve got a United States citizen who’s providing for you; that person votes. In many of these – in this particular situation, it’s only events like this, and, you know, hearings that Congress has that brings attention to this huge backlog of cases and the problem that exists.

So, you know, the good part about USCIS is – and this was as of FY 2015, I think – they were sitting on $1.2 billion of money that they had accumulated in previous years that they hadn’t spent yet. And there was a belief that maybe that was being saved for a potential amnesty so that they could ramp up quickly and then collect the fees back from those individuals. But that would be speculation. (Laughter.) But the fact is they could – you know, in light of what is an obvious emergency, they could use some of that money to hire additional asylum officers. And asylum officers are actually a bargain. Most of them are GS-12s and get paid – you know, I think that they top out in the $80,000 range, so compared to an immigration judge, it’s a pretty good deal.

Just to give a plug for a blog that I did recently, I also propose that perhaps, like the federal district courts, Article III judges will have Article I magistrates who assist them in their jobs. Mark will tell you a lot of the stuff that we did as judges doesn’t require three years of law school and 20 years of practice to do. A lot of the people that came before me were people who had been caught drunk driving, who had been arrested because they had engaged in spousal abuse, and they would come and ask for bond. Took up a huge part of my calendar. But the fact is I’m no more likely to know whether somebody is going to drunk-drive again than anybody sitting in this room or most of the people that you’re going to grab on the street outside.

So, you know, there are some fine points immigration law. It’s a very complicated system in certain instances that plainly require, you know, years of legal study and, you know, lots of training. But there are plenty of situations that, quite frankly, could be done by somebody a lot cheaper. Save the government money, we could hire more of them. So anyway.

MR. KRIKORIAN: Todd had some comments, and then we’re going to wrap it up. Todd?

MR. BENSMAN: Yeah. To your question, so none of this is really a secret that there are capacity problems with USCIS, major capacity problems. In fact, I would argue that USCIS in order to fix this problem needs a top-to-bottom reformation. It needs to be reformed, and it needs to be expanded to be able to address not just the asylum fraud detection problem but also to convert to intelligence collection because they’re in a unique position to be able to collect during their interviews and to do something with that intelligence collection.

But Art mentioned in his research paper and also today about some GAO reporting. And he mentioned – and the GAO has been issuing alarms about this for years. OK, this is a December 2015 report, very interesting reading. And I’ll just tell you one thing that really stood out for me in terms of process and capacity is that U.S. Attorney’s Offices across the eight districts, that USCIS will not prosecute – they’re not inclined to prosecute asylum fraud at all. And this report provides the statistics showing that U.S. Attorney’s Office won’t prosecute asylum fraud cases very often, very rarely.

The trickle down to that is that in the asylum – in the ICE HSI offices that investigate this, they’re not going to bother sending referrals or doing investigations. There is a disincentive for them. Nobody wants to spend two years investigating a case that the U.S. atty is going to turn down. So that is a systemic problem with this whole issue is just simply detection on the bottom end; at the mid-level, investigation; and at the top of the food chain, prosecution. None of that is happening in that area that we’re addressing today.

And it’s really stark in not just this GAO report but prior GAO reports about the same problem. I think there was one in 2008 that surveyed asylum officers, and 70 percent of them or 80 percent of them said that they were pretty sure that they’ve given credible fear to people that they weren’t sure about. They just did it, pushed them through.

MR. KRIKORIAN: Thank you, Todd.

I want to respect people’s time, and we’re going to wrap it up. Thank you, Art and Mark. Our speakers I’m pretty sure are available to be accosted by you afterwards if you all have more accosting you want to do. But I want to thank our speakers and thank all of you. And the transcript and video of this will be up on our website in a few days. The reports that we published by Art and Mark are on our website at And thanks for coming. (Applause.)


Topics: Asylum