ABC News recently announced that the Biden administration “start conducting asylum interviews at the border“. If that sounds familiar, that’s because the outlet describes an “expedited removal,” a key border control tool that Congress gave the executive branch 26 years ago and that the Biden administration has largely ignored. Unfortunately, even watered-down border enforcement is now breaking news.
Accelerated elimination and believable fear. “Expedited removal” is a process that Congress created in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to address weaknesses in border enforcement and the prosecution of asylum
As the House Judiciary Committee explained to its committee report for what would be IIRIRA (then known as the “National Interest Immigration Act”):
Existing procedures for denying entry to and removing illegal aliens from the United States are cumbersome and duplicative. Deportation of aliens who enter the United States illegally, even those ordered to be deported after a due process hearing, is an all-too-rare event. The asylum system has been abused by those who seek to use it as a means of “backdoor” immigration.
The more things change. . .
IIRIRA replaced a highly convoluted and highly litigious calculus for assessing the rights of illegally entered aliens known as the “doctrine of entry”—as well as what were known as “removal” procedures and “exclusion” – with the current concepts of “expulsion”. ” and “removal procedures”.
Most pertinently, Congress provided that the then-Immigration and Naturalization Service (INS), the former unified agency with jurisdiction over immigration enforcement and adjudication, could prosecute aliens without entry documents suitable (including illegal entrants) through new “expedited removal” provisions in section 235(b)(1) of the INA. Expedited removal allowed the INS to remove these aliens without giving them an opportunity to appear before an immigration judge (IJ).
Congress, however, did not prohibit these aliens from seeking asylum. Rather, it added an exception to expedited removal called “credible fear,” whereby asylum officers (AOs) could screen potential asylum applications from aliens subject to expedited removal.
Briefly, when an alien subject to expedited removal asserts an intent to seek asylum or fears persecution upon return, the alien must be referred to an AO, who interviews the alien to assess whether there is “a significant possibility, given the credibility of statements made by the alien in support of the alien’s claim and other facts known to the officer, that the alien could establish eligibility for asylum “.
If the AO issues a “positive determination of credible fear” (as it did 81 percent of the time between Fiscal year 2008 and the fourth quarter of fiscal year 2019), the alien is usually subject to deportation proceedings to apply for asylum.
If the AO makes a “negative credible fear determination,” the alien may seek review of that decision by an IJ. In 2 percent of all expedited removal cases involving aliens who asserted credible fear in that time period between FY 2008 and 2019, IJs reversed negative AO determinations and found a believable fear.
The biggest weakness of this system is that “credible fear” is a screening standard, and thus the likelihood that an illegal entrant without an asylum claim will receive a positive determination of credible fear from an AO or of an IJ is high, as noted, 83. the percentage of aliens subject to expedited removal between fiscal year 2008 and the fourth quarter of fiscal year 2019 exceeded this limit.
Ultimately, however, only 14 percent of border migrants who claimed credible fear were granted asylum, while nearly twice as many (27 percent) of aliens who claimed credible fear were deported in absence when they did not prove it. in immigration court.
Not that the Biden administration couldn’t find a way to make the problem worse.
In may, the Biden administration amended the credible fear regulations to allow AOs to also aid asylum claims by border migrants, not just credible fear. In an 83-page commentary, the Center listed everything that was wrong with the plan (including that it deprived the American people of a representative in the process and was very likely to result in erroneous subsidies), but Biden he went ahead anyway.
Until the end of January, 973 applications were referred to AOs for these “asylum merit interviews” (AMIs) and, as we had warned, the AO grant rate (33.5 percent) was more than double the subsidy rate of the IJ (13.8 percent in the first quarter of FY 2023) for asylum applications that had originated from a credible claim of fear by a border migrant.
Biden’s use of expedited removal. Again, Congress in IIRIRA created expedited removal to make it easier for the then-INS and its successor agency in border enforcement, CBP, to remove aliens who enter illegally, to prevent migrants from border guards abuse the asylum system and use it as a means. of “back door” immigration.
Although the Southwest border has been overrun by a surge of illegal migrants since Joe Biden took office, however, the use of expedited deportation has been the exception, not the norm, during the last two years
For example, of the nearly 563,000 illegal migrants apprehended by the Border Patrol on the Southwest border who were not removed under Title 42 a FY 2023fewer than 52,000 – just over 9 percent – were subject to fast-track removal.
Because? Because it’s much easier and faster for Border Patrol agents to release illegal migrants than it is to process them for expedited removal.
Of course, as Justice T. Kent Wetherell II stated in his recent opinion in Florida v. US, it is not legal for Biden’s DHS to simply release these aliens, and it encourages even more aliens to cross the border illegally, but the Biden administration has shown little interest in either the INA’s restrictions or the border security
What the Biden administration has been interested in so far is ensuring that all foreign nationals who can come to this country, legally or not, have the opportunity to apply for asylum, regardless of whether they have valid claims and despite the effects that this entails. has a backlog of immigration courts.
The reverse of the Administration. While most Americans have no idea how terrible border security has become on the Southwest border, the president’s immigration policies are deeply unpopular with the American people.
In a recent Economist/YouGov poll of 1,500 US citizens, 55 percent of respondents disapproved of Biden’s handling of immigration (39 percent “strongly”), compared to just 35 percent who approved (11 percent hundred strongly anemic).
That’s probably why, as ABC News reported, the president’s DHS is dusting off the expedited removal manual. However, that process has become so underutilized lately that this is how the outlet describes Biden’s new plan:
Starting with a small number of migrants, asylum officers will begin holding screening interviews known as “credible fear” with those at US Customs and Border Protection facilities. … Interviews are one of the first steps required to submit an asylum application.
As if expedited deportation was a proposal dreamed up in the West Wing last week, not a process that has been law since the Clinton administration.
That said, the administration is putting its own spin on this more than two-decade-old process. According to ABC News:
Asylum interviews will move forward as the Department of Homeland Security works to expand access to legal remedies for migrants at border facilities.
…
“DHS will work with legal service providers to provide access to legal services to individuals who receive credible fear interviews in CBP custody,” a DHS spokesperson said in a statement.
Note that the expedited removal statute provides that an alien who is scheduled for a credible fear interview by the AO “may consult with a person or persons of the alien’s choosing prior to the interview or any review of this, in accordance with the regulations prescribed by the Attorney General”. but at no time does it require the government to make “legal remedies” available to such foreigners.
In fact, the regulation The application of this provision allows the alien to consult with a representative in advance and have that representative present at the interview (and make a statement at the end), but also makes clear: “This consultation will not incur any cost to the Government and will not unreasonably delay the process.” (Emphasis added.)
Despite this, ABC News reports that “A Biden administration official stressed that interviews at border stations will only increase as migrants become more connected to legal service providers.”
I’m a lawyer and I care about justice and due process (and the continued employment of lawyers), but slowly re-implementation of expedited deportation until DHS “works to expand access to legal remedies for migrants in border facilities” violates the regulation and is meaningless.
Illegal migrants pay smugglers to bring them into the US for a reason, and are perfectly capable in almost every case of explaining that reason to the AO in the credible fear interview without consulting a lawyer. Simply put, migrants fear persecution because of race, religion, nationality, membership of a particular social group or political opinion, or they do not.
The good news is that Biden’s DHS has rediscovered expedited removal, the tool Congress gave him to secure the border. The bad news is that the department is making this process just as “tricky” as the deeply flawed scheme it replaced in 1996. If foreigners can pay thousands of dollars to smugglers to bring them here, they can pay lawyers so that they are prepared to represent them. arrive, without forcing taxpayers to wait and pay the bill.
