Commentary | Center for Homeland Security and Immigration

DHS-DOJ Joint Rule Latest Deliberate Attempt to Dismantle the Immigration System

Scott Erickson ,  April 4, 2022

The Biden Administration’s ongoing humanitarian and national security crisis at the Southern border is not the result of incompetence but rather a systematic and deliberate attempt to deconstruct the United States’ lawful and orderly immigration system. If this seems difficult to believe, recent comments by Department of Homeland Security (DHS) Secretary Mayorkas should remove any doubt, as he proudly declared that the Biden Administration had “fundamentally changed immigration enforcement.” Sadly, the Secretary was accurate in his statement.

The recently issued joint rule by the DHS and the Department of Justice (DOJ) creates a shortcut to adjudicate asylum claims from recent illegal border crossers. Instead of increasing the number of immigration judges within the DOJ’s Executive Office of Immigration Review (EOIR) and altering policies that would allow for a quicker adjudication, the Biden Administration simply decided to empower asylum officers within DHS’ U.S. Citizenship and Immigration Services (USCIS) to determine the validity of asylum claims.

Up to this point, USCIS asylum officers have been responsible for assessing only the initial portion of migrants’ potential claims of asylum. Any migrant presenting at the border without documentation and who wanted to challenge their removal would first have to demonstrate a “credible fear” of persecution should they be returned to their country of origin. If an asylum officer determined that credible fear existed, that individual would be allowed to pursue an asylum claim pending their removal under section 240 of the Immigration and Nationality Act.

The twist is that the threshold for being granted positive credible fear status by an asylum officer, and thus advancing into the broader asylum adjudication process, is much lower than that necessary to be granted actual asylum by an immigration judge. The data demonstrates this.

It is estimated that roughly 70% of the credible fear claims being made by individuals at the border are found to be positive by asylum officers; however, only 15% of those individuals are ultimately granted asylum by an immigration judge.

Secretary Mayorkas claims that the rule change will help build a “more functional and sensible asylum system to ensure eligible individuals will receive protection more swiftly, while those who are not eligible will be rapidly removed.”

Given the massive increase in migration toward the southern border and subsequent release of individuals into the interior of the United States since the start of the Biden Administration, this claim seems dubious.

Every policy decision by the Biden Administration regarding border security or immigration thus far has only served to encourage more illegal migration and discourage the enforcement of the immigration laws already on the books.

What will likely be the fallout from this rule change is that USCIS asylum officers will merely greenlight a much higher percentage of final asylum claims than had previously been granted when under the measured consideration of an EOIR immigration judge.

What the Biden Administration calls a streamlining of the system is, in reality, just a further degradation of the integrity of the Nation’s immigration system.

A functional immigration and asylum system must support meritorious claims while also enforcing the laws against those deemed unmeritorious. Merely amending the process to streamline capacity building to allow as many individuals into the interior of the United States as quickly as possible only encourages more unlawful migration and ultimately inhibits the ability of the United States to offer timely relief to those fleeing from genuine persecution.

Scott Erickson serves as a Senior Fellow for the America First Policy Institute (AFPI).

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