In March, the DHS and DOJ published new rules for asylum claims by illegal border entrants. Overturning decades of practice, those rules allow Citizenship and Immigration Services asylum officers — not immigration judges as in the past — to grant asylum to migrants apprehended at the border. The New York Times has offered its foolishly hopeful take on the new system, which will encourage more migrants to enter illegally and deprive the American people of important protections.

Concerned about illegal entries, Congress amended the immigration laws in 1996 to allow the Department of Homeland Security to quickly remove border migrants without sending them to immigration court. That amendment, however, directed asylum officers to interview entrants requesting asylum to determine whether they had a “credible fear” of persecution, essentially a screen to weed out truly bogus claims.

The credible fear standard is low, and migrants who cleared it (as 83% did between Fiscal Year 2008 and the fourth quarter of FY 2019, according to Department of Justice statistics) were placed into removal proceedings to seek asylum from an immigration judge. {snip}

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Proposal breaks law

My organization and others submitted lengthy comments explaining that this proposal violated the immigration laws and would also encourage more illegal immigration.

Among our concerns was the proposal would allow asylum officers to grant asylum — placing the migrant on a path to citizenship — following a “nonadversarial hearing,” at which the asylum seeker could be represented by counsel, but the American people wouldn’t. That means no cross-examination, no impeachment evidence, and no appeal if the asylum officer got it wrong.

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Despite those concerns, the departments adopted the plan in March, and the Times reports that 99 migrants have been processed under the new rules. It quotes DHS Secretary Alejandro Mayorkas, who contends “about a quarter” of those people were granted asylum, “similar to the percentage” under the immigration-judge system.

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Encourages fraud

As both a trial attorney for the former Immigration and Naturalization Service and an immigration judge, I can state dispositively that this new system will encourage fraud, boost the number of erroneous grants, and encourage more migrants to enter illegally to game this new and poorly thought-out system.

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