At the invitation of the Attorney General, the Federation for American Immigration Reform (FAIR) has filed a friend-of-the-court brief supporting the Administration’s continuing efforts to deter illegal and dangerous border crossings.
Representing FAIR, lawyers at the Immigration Law Reform Institute (IRLI) have identified a loophole in the Department of Homeland Security’s screening program for asylum seekers that should be closed in light of a recent Supreme Court decision.
Since 1996, Congress has allowed the Secretary of Homeland Security immediately to remove aliens arriving at a U.S. border without a passport or other immigration travel document, or who make false statements to an immigration inspector. Congress also allowed the Secretary to apply this “expedited removal” process to immigration law violators in the interior of the United States.
But a loophole in the 1996 immigration law has been enabling these latter illegal aliens to avoid immediate expulsion if they tell an inspector that they have a “credible fear of persecution” should they be returned to their home country. By regulation, the inspector is only allowed to interview the alien, and may not conduct a background investigation. If the inspector decides that the alien would qualify for asylum should his or her story be true, the expedited removal order is suspended, and the alien remains in the U.S. to wait for an asylum hearing in immigration court. If the claim is successful, removal stops and the alien stays in the U.S., becoming eligible for a green card after just one year.
Immigration and Customs Enforcement (ICE) and Border Patrol officers report that, especially on the southern border with Mexico where most alien smuggling is controlled by criminal cartels, increasing numbers of apprehended aliens appear to have been “coached” to make fear-of-persecution statements that would allow them to bypass expedited removal. Under an obscure 2005 agency policy, illegal entrants who pass a credible fear interview and are waiting for an immigration court hearing date can request that an immigration judge release them from custody, despite the federal law stating they must be detained “pending” resolution of their immigration cases. Large percentages of these aliens never show up for a hearing after being released.
In the 2018 decision Jennings v. Rodriguez, the U.S. Supreme Court confirmed that the 1996 immigration law requires that all unlawful entrants must be detained while their removal cases are heard. IRLI explains in its brief how this ruling closes the above catch-and-release loophole: detained aliens may still request release from custody, but under almost no circumstances will immigration judges have discretion to grant such requests.
No More Catch-and-Release for Asylum Seekers, Oct. 15, 2018