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States’ lawsuit connects the dots on Biden’s ‘open border’ policy

AP Photo/Fernando Llano, File
In this Sept. 17, 2019 photo, a U.S. border patrol officer directs a Nicaraguan migrant family, who is applying for asylum in the U.S., over International Bridge 1 from Nuevo Laredo, Mexico into Laredo, Texas, for an interview with immigration officials.

Fourteen states have filed a suit in federal court to prevent the implementation of the Department of Homeland Security’s (DHS) interim final rule for asylum procedures in expedited removal proceedings, which will go into effect on May 31.   

The expedited removal process permits DHS to summarily remove migrants who’ve arrived at a port of entry or been apprehended after making an illegal border crossing “without further hearing or review” if they (1) lack valid entry documents, or (2) tried to procure their admission into the United States through fraud or misrepresentation.

However, if they express a fear of returning to their own countries, they are interviewed by a DHS asylum officer to determine whether they have a credible fear of persecution. If they do, they are referred to the immigration court in the Justice Department’s Executive Office for Immigration Review (EOIR) for an asylum hearing in removal proceedings.

Removal proceedings are adversarial. The migrant’s asylum application is subjected to scrutiny by a government lawyer to prevent fraudulent or otherwise unmeritorious applications from being granted.

The rule in question — and subject of the lawsuit — authorizes asylum officers to adjudicate these cases in non-adversarial asylum merits interviews; the applicants can be represented by counsel, but there won’t be any government attorneys. The asylum officer’s decision is final if he grant’s asylum. If he denies asylum, the applicant will be referred to the immigration court for removal proceedings at which point he can resubmit his asylum application.

Detention is mandatory in expedited removal proceedings, but DHS can release migrants by granting parole status on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.” The rule will permit DHS to consider the availability of detention facilities in deciding whether to grant parole. 

The states claim in the lawsuit that DHS doesn’t have the authority to let its asylum officers adjudicate asylum applications in expedited removal proceedings and that making the shortage of detention facilities determine whether migrants will be released violates the restriction that parole must be granted on a case-by-case basis. They argue it would permit DHS to grant parole en mass whenever there is a shortage of detention facilities.

Reason for expedited removal proceedings

Before expedited removal proceedings were established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), migrants attempting to enter the United States without proper entry documents were allowed into the country for a hearing before an immigration judge. Many of them just disappeared into the interior of the country.

Expedited removal proceedings were supposed to prevent migrants from doing this, but it continued to happen. During the period from fiscal 2008 through fiscal 2019, a credible fear was found at 81 percent of the credible fear interviews, and the migrants were released to wait for an asylum hearing. But apparently most of them didn’t have legitimate persecution claims. Only 14 percent of them were granted asylum, and 55 percent never even filed an asylum application.

Issues the states raise

Should there be “asylum merits interviews”?

INA section 1225(b)(1)(B)(ii) provides that migrants who establish a credible fear of persecution “shall be detained for further consideration of the application for asylum,” but it does not specify who should provide the further consideration. According to DHS, this leaves it up to the agency that administers the proceedings, which is DHS.

Congress expressly requires or denies removal proceedings in other provisions dealing with migrants seeking admission to the United States when it has a preference: INA section 1225(b)(2)(A) provides that an applicant for admission who “is not clearly and beyond a doubt entitled to be admitted” must be detained for removal proceedings; and INA section 235(a)(2)  provides that “[i]n no case may a stowaway be considered” … eligible for removal proceedings.

The states point out that Congress specified that it wanted EOIR to keep its adjudicative functions when in created DHS with the Homeland Security Act of 2002 (HSA), which added section 1103(g)(1) to the INA, stating: “The Attorney General shall have such authorities and functions under this Act and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review” on the day before the effective date of HSA. Before HSA’s effective date, the applications of migrants who establish a credible fear of persecution were being referred to immigration judges at EOIR.

What are the valid conditions for parole?

DHS acknowledges that INA section 1182(d)(5)(A) provides that parole is to be granted “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit,” but it claims that nothing in this provision prohibits considering the availability of detention facilities when determining whether parole would have a significant public benefit. DHS argues that it is in the public interest to use the available detention facilities to detain migrants whose release would pose a greater risk of flight or danger to the community.

According to the states, Congress specifically narrowed the executive’s discretion to grant parole in IIRIRA because of concern that parole was being used by the executive branch to circumvent congressionally established immigration policy. This is reflected in the fact that the heading for IIRIRRA’s Section 602 parole provision is: “Limitation on use of parole.” The states argue the new rule would circumvent this limitation by declaring that the “significant public benefit” factor permits parole whenever detention space in unavailable. 

As Andrew R. Arthur observes in his op-ed on the parole issue, “It is rather incongruous for the Biden administration to argue that it must release illegal migrants on parole for lack of detention space while requesting fewer beds to detain illegal migrants.”  

Biden proposes to cut more than 25 percent of the bed capacity at immigration detention facilities in his budget request for the next fiscal year. 

If the court does not prevent the implementation of the new rule, asylum merits interviews will eliminate adversarial hearings for expedited removal proceedings, which will make it much easier for migrants with fraudulent or simply meritless persecution claims to get asylum. 

And detention will virtually be eliminated, which will likely open the border further to unrestrained illegal immigration.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at

Tags asylum seekers Biden immigration policy Credible fear detention facilities EOIR Executive Office for Immigration Review Expedited removal immigration courts Immigration detention Immigration law Joe Biden open borders Parole Removal proceedings

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