New Proposed Asylum Rule is All Smoke, Little Fire

You may have heard from some circles that the Biden Administration is proposing to ban asylum and that it is an example of President Biden adopting policies of former President Donald Trump. These critics either have not read the proposed rule or believe even attempting bureaucratic virtue signaling to deter migrant flows at the border is forbidden. This temporary rule (it sunsets on its own terms in 24 months after becoming effective) really blocks no one who would otherwise be streaming across the border to enter the United States and stay indefinitely. Rather, it simply attempts to make the processing of them more orderly. It is almost entirely aesthetic in nature, like constructing a mansion on sand.

For a “brief” summary (deep breath): the proposed temporary rule proclaims that aliens (other than unaccompanied alien children (UACs)) who arrive at the southern border with no authorization, haven’t scheduled an appointment with Customs and Border Protection (CBP) via the CBP One app (unless they have no access to a smartphone to schedule), and passed through a third country where they could have sought asylum, will be returned to Mexico (pending approval by the Mexican government).

The cartels and their coyotes must be shaking in their boots! The carrot accompanying this “stick” is a promise to double down and expand Biden’s illegal categorical parole programs to more populations so the government can replace the cartels in the smuggling business. Now this portion might actually scare the cartel’s accountants a bit, but it certainly will strike fear in the hearts of states and cities that are already overwhelmed by the numbers arriving from the border.

The temporary proposed rule creates a “rebuttable presumption” of asylum ineligibility for aliens who arrive at the border to seek asylum when there is a parole pathway for their country or when they could have sought asylum in another country they passed through on their way to the border. UACs are exempt and aliens who use a smartphone app called CBP One can schedule a convenient time with CBP to enter, and they are thus exempt from the rebuttable presumption, as well. Oh, and individuals who do not have access to the CBP One app are also exempt from the rebuttable presumption. So who, in the wide world, is this rule blocking from doing what they are doing right now? At maximum, you can say it means aliens have to coordinate with CBP more than they currently must. This is an asylum ban? This is the Biden grand plan to reduce the numbers that are overwhelming DHS and our local communities?

For one thing, the UAC exemption could very well lead to history once again repeating itself. In 2014, which is about 4 border crises and two presidents ago, the crisis was fundamentally driven by cartels trafficking children alone so they could obtain UAC status in the United States. The law in the United States treats UACs differently than most aliens encountered at the border for very good reason. It was presumed that a child at that dangerous border alone was a trafficking victim and thus the law provides many procedural protections that most aliens are not eligible for. This made sense, until cartels started separating children from their families on purpose to take advantage of this loophole. UACs, even those with parents in the United States who were paying the cartels to smuggle them in, were placed in great danger as they were in the unsupervised hands of coyotes. Due to the procedural protections under law for actual trafficking victims (which most UACs now are not), the government was overwhelmed by the UAC surge of 2014. This current temporary proposed rule could very well provide incentive for that old trick to re-emerge as the loopholes in the UAC laws remain to this day.

Of course, this need not be the case, because the rebuttable presumption created in this temporary proposed rule goes to great lengths to rebut itself. From the rule:

“Individuals who schedule a time to arrive at a port of entry using CBP One, present themselves at that time, and are processed into the United States, would not be subject to the rebuttable presumption on asylum eligibility created by this proposed rule, whether in an application for asylum or during a credible fear screening.

…

The Departments also have proposed to address those who nonetheless continue to have access concerns, by excepting from the rebuttable presumption individuals who arrive at ports of entry without a pre-scheduled time and place if the noncitizen demonstrates by a preponderance of the evidence that it was not possible to access or use the CBP One app due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”

Translation: there is no rebuttable presumption, this is simply a temporary proposed rule to require scheduling, if possible, for your entry at the border. Here’s a good rule of thumb in measuring the effectiveness of a rebuttable presumption: if you can defeat it by downloading an app on your phone, it is not effective. Even with the promises to create illegal categorical parole programs and the rule’s admission that the cartels are profiting, the aliens are in danger, and the government and our communities are overwhelmed, the Biden Administration still cannot create any real enforcement measures with teeth. Instead we are playing more shell games where they virtue signal, but do nothing to address the problem.

You do not have to take my word for it being a crisis. Simply read the rule:

“The United States’ border processing and immigration systems were not built to manage the nature and scale of the current irregular migration flows at the border and are operating under increasing strain.

The capacity constraints are felt by DOJ as well. As the number of migrants arriving at the SWB has increased, so too have the number of Notices to Appear filed in EOIR’s immigration courts and the number of pending cases.93 In FY 2022, EOIR hired 104 immigration judges for a total of 634 and completed a record 312,486 cases. Yet the number of cases pending before the immigration courts has risen to nearly 1.8 million, as the courts were unable to keep pace with the incoming volume.

As of October 2022, over 210,000 migrants have traveled to the SWB from South America through the Darién Gap in 2022 alone. The International Organization for Migration (“IOM”) reports that as of October 2022, 30 individuals had died crossing the Darién Gap in 2022, including nine children. Women and children are particularly vulnerable to attack and injury; children are also at risk for diarrhea, respiratory diseases, dehydration, and other ailments that require immediate attention. The Panamanian Red Cross reports that 10 to 15 percent of migrants are sexually assaulted crossing the Darién Gap.

Increased encounters of noncitizens at the SWB not only strain DHS resources, but also place additional pressure on States, local communities, and NGO partners both along the border and in the interior of the United States.”

So much for the sunny narrative about the border being secure that we hear from Secretary Mayorkas, Vice President Harris, and President Biden. How is the border secure according to the leaders of the government when their employees are saying these things? Either the drafters of this rule are lying or our leaders are. There is no other way to slice it.

It is very depressing that the government’s answer to the clear problem they outline is to simply require aliens with no right to enter the United States to schedule their illegal entry on an app. All the more depressing because the temporary proposed rule makes clear they know the real answer. Check out this quote:

“DHS data shows that the ability to quickly remove individuals who do not have a legal basis to remain in the United States can reduce migratory flows—whereas, conversely, the inability or failure to do so risks yielding increased flows.”

So DHS knows in their own data that quick removal reduces flows. However, their rule creates a rebuttable presumption to achieve quick removals that they then proceed to obliterate with exceptions.

The exceptions to the rebuttable presumption that swallow the rule are all the more curious because the government also acknowledges that most aliens arriving at the border are not eligible for asylum at all:

“A full 83 percent of the people who were subject to ER and claimed fear from 2014 to 2019 were referred to an IJ for section 240 proceedings, but only 15 percent of those cases that were completed were granted asylum or some other form of protection. Similarly, among cases referred and completed since 2013, significantly fewer than 20 percent of people found to have a credible fear were ultimately granted asylum from EOIR. Ultimately, the number of individuals who are referred to an IJ at the beginning of the ER process greatly exceeds the number who are actually granted asylum or some other form of relief or protection.”

That means the government knows most of the people they are encountering are not eligible for asylum, but we cannot even muster a rebuttable presumption of their ineligibility without creating exceptions that render it all but moot in practical effect. Ladies and gentlemen, I present to you the madness of the Biden Administration.

Needless to say, I wish the critics of this temporary proposed rule were right and it was instituting real reforms to allow for quick removals of aliens who have no legal basis to be in the United States. As DHS itself admits, that is how you reduce the numbers arriving at the border. The true way to protect and reform the crucial asylum system for bona fide asylum seekers is to stop the abuse of the system by frivolous claimants who clog up and break down the system. The government admits the vast majority of asylum seekers are not bona fide right now, so why aren’t they stopping the abuse that forces aliens in legitimate need to wait in crushing backlogs? Instead, we are sitting front row in classic kabuki theater with the Biden Administration saying one thing while doing the complete opposite. With the clock ticking on Title 42 and aliens massing at the border, we need some real change. Unless you believe the real problem at the border is aliens not scheduling their visit with CBP beforehand, then this ain’t it, chief.

JARED CULVER is a Legal Analyst for NumbersUSA