What percentage of illegal aliens crossing the border are claiming asylum? Eighty percent? Fifty? That's what you'd think from listening to the news and the politicians. But what if I told you it could be lower than 10 percent?
The prevailing narrative about our border is that the surge in illegal immigration is dominated by Central American family units who instantly assert a "credible fear" of persecution and are immediately processed as asylum seekers and released into our interior with the faint hope that they will show up to a court hearing, where their claim will likely be turned down. While it is likely that the perception of bogus asylum claims as the key to obtaining release into our country is what motivated this wave originally, it appears that few of them are even asserting a bogus credible fear at all. Yet, we are still processing them as if they are legitimate asylees instead of immediately placing them into expedited removal, as required by law.
On Monday, Carl Landrum, deputy chief patrol agent of the Yuma Sector, released a surprising piece of information on Fox News that fundamentally upends the public perception at the border, a fact that would even surprise most in government. "Only six percent of the people crossing the border are expressing a credible fear and requesting asylum," said Agent Landrum, regarding the Yuma Sector specifically.
Customs and Border Protection (CBP) has declined to answer my request for similar data for other border sectors.
Yuma is one of the sectors where we are seeing large family units from Central America cross almost daily. A whopping 24,198 individuals in family units have been apprehended in Yuma for the first six months of fiscal year 2019, up from 6,487 in FY 2018. Yuma is the third-hardest-hit sector, behind the Rio Grande Valley and El Paso sectors, so the fact that we have it from the deputy chief patrol agent that only six percent of overall apprehensions in that sector are even expressing a credible fear is earth-shattering and has disturbing ramifications.
This revelation means that our government has essentially vitiated the entire Immigration and Nationality Act (INA) and has declared a de facto open border. This is not just about the erroneous interpretation of asylum law. We are shredding every word of the INA and processing and releasing almost all of these people, even those who don't express a credible fear, rather than immediately placing them in expedited deportation.
It's true that more people will likely express a "credible fear" if we were to do that, but that assertion should be denied, starting a maximum seven-day clock for an appeal. Thereafter, they can be returned to expedited removal, and no immigration judge, much less an Article III judge, can get involved in any way. That is current law, and no new law can be written more emphatically than the one on the books.
The problem is that at this point, they are all being released, and that clock is never starting. Therefore, even if we track them down later on, they can always reassert their claim at that point and further delay deportation.
I first started to suspect that most of the families were not asserting a credible fear when I examined the USCIS credible fear caseload data for the first four months of the fiscal year. USCIS has received 35,310 credible fear cases for the first four months of this fiscal year. That is a high number, but that is roughly on pace for the same high baseline of FY 2018, when we hit nearly 100,000 cases. We are on pace for about 106,000 claims this year.
One would expect with our border numbers crushing those from last year that, if it's being driven primarily by asylum requests of Central American families, the dockets would swell even over last year's numbers. That is simply not the case. There's been a 370 percent increase in family units for the first half of this fiscal year compared with the first half of FY 2018. The one caveat is that the USCIS credible fear caseload data for February and March, the two busiest months, has not yet been published, but based on what we see for the first four months, it's clear that credible fear cases are in no way increasing commensurate to the increase of family units coming in.
Furthermore, data from Syracuse University's Transactional Records Access Clearinghouse (TRAC) also confirms this trend. In an analysis titled, "Newly Arriving Families Not Main Reason for Immigration Court's Growing Backlog," TRAC asserts, "Since September, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by the Department of Homeland Security (DHS) as 'family unit' cases." That is just 41,488 out of 174,628 cases. And that number is really inflated because, as noted by TRAC, "each parent and each child are separately counted as "court cases" even though many are likely to be heard together and resolved as one family unit." They conclude that "recent family arrivals" comprise "just 4 percent of the current court's 855,807 case backlog" as of February 28.
Even the liberal Syracuse University, which is clearly upset that the administration is not doing enough to grant bogus asylum claims, articulates the case I've made all along – that nothing in our laws compels this outcome.
Families arriving at the border do not automatically have the right to file for asylum in Immigration Court. Under existing laws, such families must pass a number of hurdles. First, those simply coming for better economic opportunity are subject to expedited removal by DHS – a purely administrative process that doesn't require a decision by any judge. Simply expressing a "credible fear" of returning to their home county is also not sufficient. Each family must pass a credible fear or reasonable fear review. Those that do not pass this review do not have an opportunity to proceed and present their asylum claims. Again, such individuals are subject to expedited removal from the country.
So why is this administration not placing every single person who comes to the border into expedited removal? Even if they begin asserting the credible fear claims thereafter, those claims can be denied by Trump through his administrative officials without any review from the courts, and then they are placed back in expedited removal.
The only excuse the government has left is that it doesn't have enough suitable facilities to hold the family units in order to comport with the Flores settlement. But the administration has had months to muster all of its logistical assets and diplomatic prowess with Guatemala and Honduras to begin an airlift to Central America for expedited removal.
Let's put aside those already released as water under the bridge for the time being. Declaring expedited removal for the next wave of illegal immigrants will send an immediate message to those farther down the pipeline that catch-and-release is over. It would be worth clearing out all the facilities (which they are doing anyway) in order to hold just the next group for the week or so needed for removal. There is no reason why this should take more than 20 days.
Moreover, the president can nullify the Flores settlement, which in itself is a violation of law requiring us to detain these people (8 U.S. Code § 1225(B)(iii)(IV)) and write a new procedure for detaining family units together. The DHS published such a proposal on September 7, 2018, but for whatever reason has never promulgated it.
The laws aren't the problem. They are, in fact, the solution. This is not about asylum, because most aren't currently asserting it. Nor is this about asylum law, which was written to prevent this very outcome. This is about the abolishing of our laws and borders.
Editor's note: This piece originally erroneously identified an incorrect author for the piece. We regret the error.