Asylum Officers Push Back Against Biden Border Proposals
On April 12, CNN ran an article captioned “‘It feels like Groundhog Day’: Federal officials frustrated by whiplash as Biden turns to Trump-era border policies”. It’s exceptional, though likely not in the manner the outlet intended, in that it reveals that asylum officers (AOs) — USCIS line employees charged with adjudicating credible fear claims and affirmative asylum applications (among others) — are pushing back on the president’s recent border proposals. It also calls into question their individual and collective objectivity when it comes to implementing U.S. law.
Asylum Officers. AOs are USCIS employees within the Asylum Division at the agency’s Refugee, Asylum and International Operations Directorate (RAIO).
RAIO’s officers “adjudicate[] affirmative asylum applications for people who are already in the U.S. and, generally, are not already in removal proceedings” and also “conduct[] credible fear screenings for people placed in expedited removal [and] reasonable fear screenings for people subject to final administrative removal orders or reinstatement of prior removal orders”, among other duties.
According to USAJobs, AOs start at a pay of GS-9 step one on the federal government’s general pay scale ($42,823.00) and can make up to a GS-11 step 10 ($67,354.00) with promotion potential to $80,731.00 (GS-12 step 10), as well as possible locality pay increases. Note that neither a law degree nor a PhD is required for the job — in fact, it’s not entirely clear that even a bachelor’s degree is a prerequisite.
Affirmative Asylum Applications. As noted, among AO’s job responsibilities are adjudicating “affirmative asylum applications”, that is, applications for asylum filed by aliens who aren’t in removal proceedings.
Any alien in the United States who isn’t in removal proceedings can file an affirmative asylum application, from nonimmigrants who have just arrived, to nonimmigrant overstays and illegal entrants who haven’t been caught yet.
If those applications are granted, the new asylee will be able to apply for a green card after a year, and for U.S. citizenship five years thereafter.
Expedited Removal and Credible Fear. Credible fear adjudications, a component of the expedited removal process, are the primary focus of AOs’ complaints in the CNN article.
Briefly, in 1996, Congress amended section 235(b)(1) of the Immigration and Nationality Act (INA) to give the-then INS (now CBP) authority to remove alien “applicants for admission” encountered at the borders and ports who are inadmissible because they either lack entry documents (including illegal entrants) or are seeking admission via fraud, without first obtaining a removal order from an immigration judge (IJ).
Under those amendments, aliens subject to expedited removal who request asylum or claim a fear of harm upon return are to be sent to AOs for interviews to determine whether they have a “credible fear” of persecution, that is, “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.
As that definition suggests, the credible fear interview is a screening process to determine whether aliens may be eligible for asylum. Most (81 percent) of aliens subject to expedited removal who claimed a fear of return between FY 2008 and the fourth quarter of FY 2019 received a “positive credible fear determination” from AOs (an additional 2 percent were found to have a credible fear by IJs on review).
Up until May, aliens found to have a credible fear were taken out of expedited removal and placed into “ordinary” removal proceedings before IJs to apply for asylum in immigration court. I’ll discuss the Biden administration’s recent changes to that process below.
In those removal proceedings, and despite the high rate at which AOs and IJs found credible fear, less than 17 percent of border migrants found to have a credible fear by an AO or IJ were ultimately granted asylum.
By contrast, 32.5 percent of those aliens were ordered removed in absentia when they subsequently failed to appear in court.
The Morton Directive. For years after Congress created the expedited removal process, few aliens subject to expedited removal claimed credible fear — 5 percent in FY 2006, FY 2007, and FY 2009; and just 4 percent in FY 2008.
That quickly changed, however, thanks to an Obama-era release directive.
Note that in section 235(b)(1) of the INA, Congress mandated that aliens subject to expedited removal be detained — from the point of encounter, through the credible fear process, and while their asylum applications are considered in removal proceedings until they are either granted asylum or removed.
Despite that mandate, in December 2009, then-ICE Director John Morton directed his officers to release aliens who had passed their credible fear interviews on “parole”.
The percentage of aliens placed into expedited removal proceedings who claimed credible fear after that directive was issued rose, and then soared: to 8 percent of the total in FY 2011, 15 percent in FY 2013, and to 39 percent in FY 2016. A lot of migrants — and more importantly their smugglers — were plainly exploiting the low credible fear standard and the Morton release directive to enter the United States.
Trump’s Response. At least initially after Donald Trump took office, the number of illegal migrants apprehended by Border Patrol at the Southwest border dropped significantly, to fewer than 304,000 in FY 2017 from nearly 409,000 the prior fiscal year.
Apprehensions quickly rebounded however in FY 2018 (to more than 376,000), when nearly 100,000 aliens subject to expedited removal claimed credible fear.
In FY 2019, apprehensions exceeded 851,000, and the Trump administration was forced to act. There were now too many aliens to reverse the Morton directive, however, but continued releases only encouraged more to come, as a bipartisan federal panel found in an April 2019 report.
Trump’s primary response was the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, which was fully implemented by the summer of 2019, non-Mexican migrants who crossed the Southwest border illegally were returned to Mexico to await their removal hearings at “port courts”.
An October 2019 DHS assessment described MPP as “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.
In addition to MPP, Trump also negotiated safe third country “Asylum Cooperative Agreements” (ACAs) with El Salvador, Guatemala, and Honduras, to share the migrant burden with our regional partners by sending third-national asylum seekers to those countries to seek protection.
And, to speed the review of credible fear claims by illegal entrants, Trump implemented two separate programs: Prompt Asylum Case Review (“PACR”), for aliens from Central America; and Humanitarian Asylum Review Program (“HARP” ), for Mexican nationals. Under PACR and HARP, credible fear claims were conducted while illegal entrants were in CBP custody.
President Biden reversed PACR and HARP through an executive order issued on February 2, 2021, and his State Department suspended the ACAs shortly thereafter.
He also suspended new enrollments in MPP shortly after taking office, with his DHS secretary, Alejandro Mayorkas, subsequently terminating the program twice, even while a challenge by state plaintiffs in Texas v. Biden to force DHS to reimplement MPP has been wending its way through the federal courts.
Title 42. The only quasi-border-related Trump policy implemented that Biden kept in place involved CDC orders issued pursuant to Title 42 of the U.S. Code, directing the expulsion of illegal migrants in response to the Covid-19 pandemic. Those Title 42 orders have been the only thing standing between chaos and an utter meltdown of border security at the Southwest border.
Between February 2021 (Biden’s first full month in office) and February 2023, CBP encountered more than 4.47 million illegal migrants at the Southwest border, setting new apprehension records there in both FY 2021 (nearly 1.6 million aliens) and FY 2022 (more than 2.2 million aliens).
Nearly 2.177 million of those aliens were expelled under Title 42, while the remaining 2.295 million-plus were processed under the INA for removal proceedings.
The Biden administration has announced that Title 42 will end along with other Covid-19 related orders on May 11 (although a case involving Title 42 is pending before the Supreme Court), and DHS fears a post-Title 42 migrant onslaught at the Southwest border (a rush that has already begun).
Biden’s Response. In response, the Biden administration has started reconfiguring its border migrant processing policies.
First, it is encouraging would-be illegal entrants to instead schedule “interviews” at the ports of entry using the CBP One app. Logically, most if not all those aliens would be released on parole, although again, the INA mandates they be detained.
Second, the Biden administration is proposing that those who bypass CBP One scheduling for port interviews and enter illegally will be subject to a “rebuttable presumption of asylum ineligibility” if they failed to apply for asylum in a third country they passed through on their way to the United States.
This has been compared to the Trump administration’s 2019 “third-country transit rule”, which was enjoined by lower courts and never enacted, but as my colleague Elizabeth Jacobs has explained, the Biden plan is so shot full of loopholes as to be likely ineffective.
Third, the Biden administration is proposing returning to expedited removal and credible fear screenings for apprehended border migrants. That includes AO interviews of aliens while they are in CBP facilities.
Up to now, Biden has largely dispensed with expedited removal — again the main tool that Congress gave INS/CBP back in 1996 to respond to illegal migrant entries. For example, of the almost 563,000 illegal migrants apprehended by Border Patrol at the Southwest border who weren’t expelled under Title 42 in FY 2023, fewer than 52,000 — just over 9 percent — were subject to expedited removal.
Finally, last May, the Biden administration amended the credible fear regulations to enable asylum officers to adjudicate those aliens’ actual asylum claims, as well.
Through the end of January, however, just 973 cases were referred to AOs for such “Asylum Merits Interviews” (AMIs) and, thus, most aliens who received positive credible fear determinations were sent to immigration court. That said, AOs have granted asylum to border migrants at more than twice the rate (33.5 percent) as IJs did in the first quarter of FY 2023 (13.81 percent).
AO Backlash. Which brings me to the CNN article, detailing some AOs grievances about Biden’s newest border plans.
They complain that the Biden plans are too akin to Trump’s policies — with which they disagreed — for their tastes. The following excerpt is indicative of their discontent:
“It feels like Groundhog Day,” [an] asylum officer told CNN. “With the Trump era, it felt like we had really gotten to rock bottom and when Biden took over, it seemed like a light ahead of us. It feels very disheartening.”
“If this is just going to be repeating over and over, there are so many other things I could be doing,” the asylum officer added.
…
The dissatisfaction among asylum officers over stringent asylum policies is reminiscent of the Trump years. CNN spoke with asylum officers located across the country who said they had hoped Biden would correct course from his predecessor, but the latest slate of policy considerations, they say, is discouraging.
They are particularly unhappy with the third-country asylum rule. CNN reports that in its response to the administration’s proposal, the AOs’ union — and yes, they have one — called it “’draconian’ and argued that enforcing it ‘could make them complicit in violations of U.S. and international law’”.
There’s a lot to unpack there but let me start by noting I served under two Republican presidents (Bush I and Bush II), and two Democratic ones (Clinton and Obama).
As an INS trial attorney and associate general counsel under Presidents Clinton and George W. Bush, there were any number of changes in the law (including the 1996 amendments), particularly with respect to asylum. I disagreed with — but had some input into — a few of those changes, but once made, I dutifully complied with them.
The same was especially true when I served as an IJ under the Bush II and Obama administrations. My job as an adjudicator was to apply the law as written, plain and simple.
Complaining about changes would have been fruitless, but more importantly, would have evidenced bias on my part. Adjudicating asylum claims is a process-, not results-oriented, job, and taking sides one way or another would have been a facial breach of impartiality.
No one forced me to take the job, and no one forced the AOs to take theirs, either. That said, I’m simpatico to their complaints in the CNN article about the workload (I completed more than 13,000 cases in eight years), and that they “are often conducting difficult interviews with migrants describing the trauma and conditions they’re fleeing in their home countries”.
That latter plaint is real — there’s a difference between watching savagery on TV and hearing about it first-hand. But if you can’t separate yourself as an adjudicator from what you’re hearing, and assess it dispassionately, you’re likely (1) not going to be able to handle the job mentally, and (2) going to make decisions based more on empathy and compassion than law and logic.
I’ve heard plenty of grueling stories of violence and inhumanity that either didn’t satisfy the standard for protection or were so internally inconsistent and/or inconsistent with other evidence as to be incredible. Conversely, there are straightforward claims that I quickly granted.
Additionally, at least one AO cited stated that he or she would refuse to do credible fear interviews in CBP custody — raising the question of where that AO would prefer those interviews to occur. The administration wants Congress to cut its ICE detention space, and if that happens, there won’t be any room there.
AOs are free to air their grievances in this manner but aren’t doing themselves any favors. There are legitimate questions as to why their border-migrant asylum grant rates in Biden’s AMI process are so much higher than IJs’ (as the Center posited it would be in its comments to that rule), as well as why they find credible fear in such a high percentage of cases. The CNN article certainly doesn’t resolve those questions — it just raises more.
The Biden administration has created a border disaster by refusing to deter migrants from entering illegally and treating them all as asylum seekers. If history’s a guide, most aren’t. That’s why any border asylum decisions must be based on logic and law. CNN suggests, however, that some asylum officers are allowing emotion to get in the way of adjudications that are fair to everyone — including the American people.
