The window for public comments regarding the Biden administration’s proposed asylum rule closes this week, and it looks like at least some Americans understand the mischief.
“So wrong and deceitful!” wrote Dianna Key of the rule on the public forum for administrative rule making. Her comments were echoed last week by an immigration judge, who called it a “misleading and dishonest proposal.”
What numerous such commentators understand is that the rule would allow massive numbers of legally inadmissible migrants to enter the United States on the basis of meritless, and in some cases, fraudulent, asylum claims. To appreciate why, let’s start with a brief primer on “expedited removal,” which allows aliens apprehended at the U.S. southern border without valid entry documents to be immediately removed.
To protect asylees, Congress also requires that any alien who expresses a fear of persecution is interviewed by an asylum officer. If the alien has a “credible fear,” then, by law, “the alien shall be detained for further consideration of the application for asylum.” If no credible fear is found, the alien is ordered removed — although negative fear determinations are reviewable by an immigration judge.
Congress created expedited removal in 1996 in large part because inadmissible aliens were gaming the system — i.e., entering the United States on bogus asylum claims, then skipping the immigration hearing, not heeding an order of removal, or just taking advantage of the multilayered appeal and review opportunities available under prior law. (The legislative history is summarized in this congressional report.)
When People Are Sent Home, Fewer Come
When allowed to function, expedited removal works — as the Obama administration showed in 2014. Amid a surge of family units illegally crossing the border, the Department of Homeland Security stopped releasing the families and, consistent with expedited removal’s mandatory detention provision, began detaining them in residential centers pending adjudication of their asylum claims.
As word got out that the government wasn’t handing out “permisos” to enter the United States, the numbers of family units illegally crossing the border significantly decreased. But then came Dolly Gee, a leftist U.S. district court judge who oversees litigation concerning the Flores Settlement, a 1997 agreement that effectively prohibits the government from detaining unaccompanied minors apprehended at the border.
In Flores v. Holder, litigation initiated by activist groups to stop team Obama from detaining families, Gee applied the Flores Settlement to accompanied minors, forcing DHS to release the family units. Judge Gee’s preposterous ruling, affirmed by her fellow activists in robes on the Ninth Circuit Court of Appeals, blew a hole in expedited removal. President Biden’s new asylum rule just blows up the whole thing.
Biden Would Not Properly Vet Asylum Seekers
As noted, asylum claims that meet the “credible fear” threshold undergo “further consideration.” This has always been done in immigration court, where government attorneys can contest suspect asylum claims with cross-examination and impeachment evidence.
That’s key, because the credible fear interview is a low threshold. As the Supreme Court recently noted in DHS v. Thuraissigiam, “[t]he applicant need not show that he or she is in fact eligible for asylum.” Most applicants with a positive credible fear determination are not ultimately awarded asylum, the court noted, as many abscond, withdraw their applications, or are denied asylum when their cases are vetted in immigration court.
But the left-wing activists in charge of Biden’s immigration policy don’t want asylum cases vetted. Under the asylum rule, the same U.S. Citizenship and Immigration Services (USCIS) asylum officers who conduct credible fear interviews would be allowed to grant asylum.
They, not Department of Justice immigration judges, would do the “further consideration” in “non-adversarial hearings,” with no government attorney challenging the many meritless and fraudulent cases, although asylum applicants would be allowed to have counsel. Speaking of left-wing activists, before being installed as head of USCIS, Ur Jaddou was employed by an anti-enforcement outfit on the left called “America’s Voice.”
Indeed, USCIS co-wrote the proposed rule. In justifying it, the administration emphasizes that the law does not explicitly state that the “further consideration” must be conducted by immigration judges. But a rule that makes it more difficult to detect meritless and fraudulent asylum claims goes against the whole point of expedited removal.
Administration’s Real Goal
The administration reveals its real intention by proposing in the rule that anyone subject to expedited removal could be paroled (released) into the United States whenever “detention is unavailable or impracticable” (emphasis added), even before the credible fear interview. Never mind that under law, parole may be granted only on a “case-by-case basis for urgent humanitarian reasons or significant public benefit.”
In claiming a general parole authority that doesn’t exist, the administration is doing what it has done since Inauguration Day with its immigration policy — namely, dispensing with the law under the guise of prioritizing resources, in this case, to “prioritize use of its limited detention bed space.”
The administration stresses that the number of asylum cases has increased dramatically since 1996, creating backlogs in immigration court. Why not, the reasoning goes, clear the backlogs by allowing the credible fear interviewers to also grant asylum?
Well, for starters, the rule transforms expedited removal into expedited admission. Once it becomes final, it will incentivize even more inadmissible migrants to stream towards the border, enriching the cartels that control the smuggling routes.
Meanwhile, Americans who object to the rule will be attacked as “xenophobes,” and if the inevitable legal challenges ultimately reach the Supreme Court, Democrats will threaten to pack it. All of this, of course, will promote “unity.”