Illegal Border Crossings Today:

Biden Administration to Accelerate Asylum Processing at the Southern Border, Cutting out ICE and Immigration Judges

President BIden in the Oval Office

FAIR Take: Special Edition | August 2021

The Department of Homeland Security (DHS) and Department of Justice (DOJ) published a notice of proposed rulemaking (NPRM) this week to allow the agencies to consolidate the credible fear process under the U.S. Citizenship and Immigration Services (USCIS) Asylum Division. Under this proposal, asylum officers would be authorized to release aliens into the United States using parole and make final asylum decisions for recent border crossers by cutting immigration judges and Immigration and Customs Enforcement (ICE) out of the process. 

Currently, inadmissible aliens who make a credible fear claim on the border are only screened by asylum officers for a significant possibility of establishing asylum eligibility. After screening an inadmissible alien, asylum officers refer positive cases to the Executive Office of Immigration Review (EOIR) by placing the alien in full section 240 proceedings.  Once in removal proceedings, immigration judges are then able to fully consider an alien’s asylum claim and any other defensives to removal that may arise.  At that stage, ICE prosecutors are also able to review or challenge the veracity of the alien’s claims and raise any other considerations in support of the rule of law and the interests of the American public. By authorizing asylum officers to make final asylum adjudications, however, the proposal cuts ICE and DOJ immigration judges completely out of the credible fear process and prevents a thorough review of aliens’ claims.

The regulatory proposal is also at odds with a recent federal court order that struck down the Biden administration’s termination of the Migrant Protection Protocols (MPP) program. The District Court for the Northern District of Texas ordered DHS to resume operating MPP by returning aliens to wait in Mexico pending their removal proceedings until the agency has “sufficient detention capacity to detain all aliens subject to mandatory detention under Section 1255 without releasing any aliens because of a lack of detention resources.” 

Further, by terminating MPP this year, and not otherwise implementing section 235(b)(2)(C) of the INA (which authorizes DHS to return aliens to Mexico pending removal proceedings rather than detain or release aliens in the United States), DHS has knowingly created the very detention capacity issue that this regulation is claiming to address. Thus, by permitting asylum officers to release inadmissible aliens into the interior, it is perpetuating what the District referred to as a “systemic violation” of the Immigration and Nationality Act (INA), which requires mandatory detention throughout the expedited removal process. Indeed, Congress enacted section 235(b)(2)(C) in 1996 to address this exact issue.

The Biden Administration claims that this regulation is needed to streamline the credible fear process, arguing that asylum officers are already equipped to make final credible fear decisions because many already adjudicate asylum claims in the affirmative asylum context. (Affirmative asylum cases refer to cases that are submitted to USCIS for processing by aliens who are not unlawfully present or in removal proceedings.)  Because the affirmative asylum portfolio does not include aliens who are in expedited removal, however, asylum officers are able to conduct substantially more thorough examinations of aliens’ claims, conduct in-person interviews, request evidence beyond testimony, and conduct background checks before approving applications. This level of review is not feasible for credible fear claims that are made in expedited removal, and is precisely why cases are referred to EOIR for section 240 removal proceedings, allowing immigration judges and ICE attorneys to review.

U.S. Customs and Border Protection (CBP) has reported historic numbers of illegal border crossers since President Biden took office and announced multiple policies weakening border security and enforcement of immigration law. While this new asylum process will alleviate some processing hurdles, it does nothing to discourage illegal immigration or eliminate any incentive to make a fraudulent credible fear claim. Rather, this proposal will streamline but weaken the credible fear review process, resulting in a higher rate of aliens without adequate claims receiving protection from removal, which in turn, will only encourage more illegal immigration and fraudulent asylum claims.

Important Points to Consider

 

  • Under this regulatory proposal, USCIS asylum officers will be able to quickly approve requests for protection made at the border and release aliens subject to mandatory detention via parole. This change cuts DOJ immigration judges and ICE prosecutors out of the credible fear process entirely, creating a lopsided process that does nothing to deter illegal immigration or discourage fraudulent asylum claims.

     
  • The Biden administration’s sole focus down at the border is how to process migrants “promptly and efficiently,” rather than addressing flaws in the system that encourage illegal immigration or reinstating effective policies put in place under the prior administration.

     
  • The Biden administration also indicated that they aim to hire an additional 1,000 asylum officers and another 1,000 support staff. This hiring spree would more than double the current crop of about 800 asylum officers and can either be funded by Congress or fee hikes. This further demonstrates that the administration’s focus is on processing not enforcement. 

     
  • This regulation perpetuates a systemic violation of the INA, which requires inadmissible aliens who make a credible fear claim to be detained pending proceedings if they are not returned to Mexico to wait.